You don’t check your common sense at the door when you come into one of these meetings. You have to use your common sense. And, it if walks like a duck and it quacks like a duck, it’s a duck.
— David L. Konick, lawyer for opponent
The Warrenton area farm owner this week lost her bid to stop a neighbor from building a road on his property that she and other opponents say appears designed to race high-performance cars rather than for agricultural uses.
After about a 28-minute hearing Thursday, the Fauquier County Board of Zoning Appeals voted, 5-0, to affirm county Zoning Chief Amy Rogers’ April 2 issuance of a permit to Najaf Husain to grade a small portion a 111.3-acre parcel along Wildcat Mountain Road for a dirt trail, constructed last year, and a new paved access road for farm and personal purposes.
Jocelyn L. Alexander, who lives about three-quarters of a mile from Mr. Husain, stated in a written appeal to the BZA that he instead planned to construct a course to race “motorized, mini Formula-1-type go-kart or Formula 1-type training vehicles” on the 3.1-acre site.
> Note: FauquierNow Publisher Ellen Fox Emerson and Editor Lawrence Emerson own property on which they live about a mile west of the site.
Workers already have graded some of the site and installed gravel portions of the approved road on the sloping land along the west side of Route 17 about four miles north of Warrenton.
Work stopped and heavy equipment left the site after Ms. Alexander filed her appeal in late April.
In a multi-page appeal, Rappahannock County lawyer David L. Konick, who represents Ms. Alexander in the dispute, provided “circumstantial” evidence and two sworn affidavits based on hearsay that suggest Mr. Husain misrepresented his intentions in the permit application.
> Documents at bottom of story
In a sworn statement, Ms. Alexander said that Mr. Husain planned to construct a racecar track — not a farm road — on the property.
The design’s layout and dimensions in no way resemble a farm road, critics contend.
The county approved-plan depicts a paved loop, 20 feet wide and about a half-mile long. The interior “paddock” area would have an underground fuel tank.
Ms. Alexander said in the affidavit that she learned of Mr. Husain’s intentions from a neighbor, Jane Hurst, who serves on the three-member Fauquier County Board of Elections.
“Jane Hurst is a close confidant of Leslie Husain, Najaf Husain’s ex-wife, who told her that Husain had been planning to build and operate a ‘shifter-kart’ track on their property that is the subject of this appeal since he/they purchased the property in approximately April 2012.
“Leslie Husain illustrated the point by saying she told her then-husband that the neighbors would hate it due to the noise levels it would create.”
In another affidavit, Peter W. Arundel — Ms. Alexander’s cousin — repeated an April 24 Zoom conversation that he had with a “long-time business partner” of Mr. Husain.
The business partner “disclosed to me Husain’s plans to build a ‘shifter-kart’ track on the property for racing” such vehicles, Mr. Arundel said.
He added: “To the best of my knowledge and belief, a ‘shifter-kart’ track is the actual purpose of” Mr. Husain’s permit application.
To further make his client’s case, Mr. Konick noted in the appeal that “numerous” online articles depict Mr. Husain “as a well-known, Formula-One Race Car enthusiast.”
The appeal includes a photo allegedly of Mr. Husain behind the wheel of a race car with a caption the lawyer provided that reads: “A picture is worth a thousand words.”
A successful software entrepreneur, Mr. Husain in 2012 sold one of his startups, AppAssure Software to Dell. That year, he purchased the Morningside Equestrian Farm, a 121-acre training center on Merry Oaks Road, from the estate of the late Arthur W. Arundel, Peter Arundel’s father, for $2.6 million.
Mr. Konick skeptically noted that the proposed layout’s infield provides for underground fuel tanks.
“What’s that for?” he said. “Fuel up the sheep? Ladies and gentlemen, you don’t check your common sense at the door when you come into one of these meetings. You have to use your common sense. And, it if walks like a duck and it quacks like a duck, it’s a duck.”
Mr. Konick added: “This looks like a racetrack to anybody who looks at it. It doesn’t look like (a farm) access road.”
The permitted use doesn’t violate its easement, according to the Land Trust of Virginia.
“Based on the plans you have submitted to us, we do not see any issues with the barn, the access way or the dirt access way submitted,” LTV Stewardship Manager Ana-Elisa Bryant wrote to Mr. Husain in a March 15 email. “Please consider this to be LTV’s approval of your plans attached . . . .”
But, Ms. Bryant said LTV would need more information before it could approve the fuel tank’s installation.
Warrenton lawyer J. Gregory Ashwell represents Mr. Husain, who didn’t attend Thursday’s BZA meeting.
Mr. Ashwell told the BZA that “there may have been some squawk or talk . . . of perhaps building some type of (car racing) facility” but that idea “was quickly doused by engineers, lawyers and people in the zoning administration because it could not be done.”
The retired Fauquier County General District Court judge added: “This (permit) application is simply for a land disturbance permit to allow (Mr. Husain) to utilize (the planned road) for agricultural purposes.”
Virginia law allows the county to pursue various civil and/or criminal actions if permit violations occur, Ms. Rogers and Mr. Ashwell told the BZA.
“Any of those can take care of the concerns (of) people who are on the other side of this particular matter,” Mr. Ashwell said.
The BZA voted, 4-1, to deny Mr. Konick’s request that the panel compel witnesses to testify before it about their knowledge of Mr. Husain’s intentions. Board member Lawrence G. McDade dissented.
The board emphatically backed Ms. Rogers’ issuance of the zoning permit to Mr. Husain for the proposed road.
The five-member panel approved a motion that in part reads: “No evidence, beyond mere speculation, has been presented that there was any material misrepresentation in the application.”
Reading the motion, Mr. McDade said that Ms. Alexander failed to show that the “zoning administrator’s decision was arbitrary or not supported by . . . the facts.”
As of Thursday, Ms. Alexander has 30 days to appeal the BZA ruling to the Fauquier County Circuit Court.
All options to resolve the dispute remain “on the table,” she said after Thursday’s BZA hearing.
Documents summarizing the positions of Ms. Alexander and Mr. Husain: