Fire chief, property owner spar over code-violation findings at Keene building

Toby Tousley, who owns the nearly 100,000-square-foot building, took the issue before the city’s board of appeals Wednesday, leading to a heated debate over the department’s findings. At the end of the meeting at the Keene Public Library, he agreed to allow the department to do a walkthrough of the entire building with him. The four-person board voted unanimously for the walkthrough.

Keene Fire Chief Donald Farquhar issued a notice of violation and order to correct to Tousley on Sept. 16. That document laid out the department’s findings from three inspections at businesses inside the building over the past year and noted that if the building is deemed to present a clear and imminent danger to its occupants’ safety, it could be ordered to be vacated.

The document cited more than 15 violations, including fire doors with locks, extension cords used as a substitute for permanent wiring, obstructed sprinkler heads, unilluminated exit signs, expired fire extinguishers and noncompliant corridors and exits.

The first inspection, following up on complaints at one business there, took place April 14, the second was at another business after a car drove through its wall on April 25, and the third was a routine inspection of yet another business on July 8, according to Farquhar.

During Wednesday’s meeting, Farquhar said the fire doors with locks are “an extreme risk,” that electrical cords used as permanent wiring are a “top-three cause of fires” and that the cumulative issues at the three businesses raise concerns about the rest of the building. He also said the building lacks a centralized alarm system to notify occupants in one part of the building of a fire in another part.

“This property appears deficient in nearly every component of fire and life safety code,” Farquhar wrote in the document, which orders Tousley to retain a fire protection engineer at his expense to investigate the building and produce an evaluation report.

In an appeal letter, Tousley shot back, addressing each of the alleged violations individually. He claimed some of the findings were made up, others lacked context and some were deliberately deceptive. Tousley said during this week’s meeting that he would not hire a fire protection engineer, which he said could cost $30,000 or more. (In an email to The Sentinel Thursday night, Tousley said he would hire the engineer but added that he maintains that Farquhar has “misinterpreted numerous codes” and believes he is “getting railroaded.”)

“I have no idea where you came up with this fabricated list of items,” he wrote in his appeal letter to the chief.

On Oct. 12, Farquhar replied to the letter, denying the appeal. He noted some improvements, including to the sprinkler system at one of the businesses, but also alleged that “the overall structure gives an impression of unpermitted work.” He pointed to HVAC units he said he could not locate a permit for and locks on fire doors, which he said would never be permitted.

In his response, Farquhar said the fire department needs to have a better understanding of the occupancy classifications in the building so it can apply the proper fire codes and suggested Tousley allow the department access to the entire building for six to eight hours to do a more thorough evaluation as an interim step.

“In sum, the building presents us with unknown occupancy classifications and cumulative effects of unknown alterations for an unknown period,” Farquhar wrote. “The confluence of these two fact sets led to the requirement for an existing building investigation and evaluation report by a Fire Protection Engineer.”

Farquhar also alleged in the document that at least one business there should be classified as a place of assembly — a designation for an indoor location where large groups of people gather — but lacks the proper permits and is therefore operating illegally. (Tousley declined to answer a reporter’s emailed questions Thursday about whether he had unpermitted places of assembly or unpermitted work done at the building, stating that the allegations were irrelevant because they were not contained in the original notice of violation.)

Tousley appealed the chief’s denial to the city’s appeals board, leading to Wednesday’s meeting. There he continued to claim the findings had been made up or exaggerated and accused the department of staging pictures of violations.

The board — which is established under state law — does not have the ability to grant variances or exceptions to fire code, according to Keene Building and Health Officer John Rogers. Instead, its function is to determine whether officials have misinterpreted the code, applied it incorrectly, or denied a building owner alternative means to meet the code, Rogers said in a phone interview Thursday. He said either the city official or the building owner can appeal a decision of the board to the state level.

Farquhar said at the meeting that he was offended by Tousley’s comments but that he hoped the Keene Fire Department could establish a working relationship with him. The fire chief said he has the option to obtain a warrant from a judge to access Tousley’s building but would prefer to work cooperatively with him.

The four board members, Doug Brown, Steve Walsh, Don Flibotte and Chair Malcolm Katz, noted that this is the first time a decision related to fire codes has come before them.

“You have the misfortune of being the first here in front of us with a fire issue,” Brown told Tousley. “... Our purview here is to make sure you two understand each other and make sure that you are both operating in good faith.”

In a phone interview Thursday, Farquhar said he believes allowing his department access to the building is a good first step. He said the department spoke with Tousley on Thursday and is allowing him to schedule the inspection at a time convenient for him and his tenants.

“Mr. Tousley’s building is far from the only building that has fire code violations,” Farquhar said at the meeting. “In almost every other instance we’ve had complete compliance [from the building owner] and a working relationship. And that’s the key, a working relationship, right?”