|Zoning defiance keeps 'Shrubman' in jail
By Gerald Mzejewski
THE WASHINGTON TIMES
Monday, April 16, 2001
Reston, Va., golf range owner John Thoburn a self-proclaimed political prisoner known as "the Shrubman" will spend his 60th day in jail today for defying the county and its landscaping dictates.
Mr. Thoburn, 43, locked in a long dispute with Fairfax County over berms, shrubs and trees, would rather dwell among drug dealers and thieves at the local jail than close his 46-acre Golf Park at Hunter Mill, as a judge has ordered.
"If I don't have any freedom on the outside, there's no point in getting out," Mr. Thoburn said in a phone interview from the county jail.
County officials are perfectly willing to let him sit there in contempt of court, while fining Mr. Thoburn's business $1,000 a day until it comes into compliance.
He claims he is being harassed by an overbearing government that wants to shut down a major competitor to its own facility a few miles away. They insist he chooses to obey some laws and ignore others.
"It has nothing to do with Mr. Thoburn personally," said Merni Fitzgerald, a county spokeswoman. "Our land-use process is what it is."
But the longer this stalemate wears on, the more support the Shrubman drums up.
"Thoburn's guilty of nothing," said Loudoun County Supervisor Eugene Delgaudio. "It's not a criminal matter when someone disobeys a zoning edict. That's cruel and unusual punishment they're subjecting a landowner to."
Said sister-in-law Jo Thoburn: "It's basically David versus Goliath."
The case has garnered attention from Brazilian and Portuguese television stations and the sympathy of a D.C.-based property-rights watchdog group.
"Save the Shrubman," reads a headline at the Internet home page of Defenders of Property Rights (www.defendersproprights.org), an organization that fights "overzealous regulations" through education and litigation.
The group has taken on Mr. Thoburn's case and started a defense fund citing abuse of power, of property rights and even of religious freedom, stemming from allegations that he is being targeted for his Christian beliefs.
"Our first obligation is to get him out of jail," said the organization's president, Nancie Marzulla. Mr. Thoburn's family has asked for an April 20 hearing.
Ms. Marzulla said she decided to take the case from the stacks of requests because "it so well illustrates how local government can be wildly out of control."
The Thoburns have been going at it with the county for years, prompting one observer to compare the two parties to the Hatfields and McCoys.
Ms. Fitzgerald said Mr. Thoburn made the first mistake by trying to build a golf range in an area zoned as "low-density residential."
"He had no right to put a commercial business on that land," she said.
The county gave in, Ms. Fitzgerald said, and granted Mr. Thoburn a permit nine years ago accompanied by some two dozen conditions regulating such things as lighting and hours of operations.
Through the years, the two sides have disagreed over everything from planting violations to jukebox violations.
For instance, the county will not let him prepare food at the golf range, which opened in 1997. Selling cans of soda is allowed, Mr. Thoburn said, but pouring a soda into a cup is not.
"They're not interested in being reasonable," he said.
As of last year, two violations remained, according to zoning officials. Mr. Thoburn had not planted enough shrubs and trees and a berm was not high enough. Both measures are intended to shield neighbors from light and errant balls.
Last April, a judge gave Mr. Thoburn a deadline to comply.
On Feb. 16, Circuit Court Judge Michael P. McWeeny jailed Mr. Thoburn for violating court orders that require him to meet the zoning conditions. Four days later, the judge ordered Mr. Thoburn to remain in jail for refusing to shut the range until it comes into compliance.
"You are throwing someone in jail for not planting shrubbery?" Mr. Thoburn asked the judge. "It's making Fairfax County the laughingstock of the country."
Mr. Thoburn said he planted more than 700 trees and shrubs at a cost of $125,000 in 1994, as required. But then the county changed its rules, Mr. Thoburn said, and demanded that 92 be moved and 50 more be added. Mr. Thoburn refused.
Ms. Fitzgerald said there are still 146 trees and 124 shrubs missing. No one told him to move anything, she said.
The berm issue has just been settled.
Mr. Thoburn said the county first wanted one made 365 feet high, then couldn't make up their minds if the height should be 365 or 362 feet. His berm stands at 365.
Ms. Fitzgerald said Mr. Thoburn never filed the proper documentation stating that he built a berm to county standards. When that documentation was received earlier this month, zoning administrator Jane Gwinn gave her approval.
As for Mr. Thoburn, he said he suffers from sleep deprivation in his cramped cell. He must lay on a mat next to a cell mate who is incarcerated on drug charges.
Mr. Thoburn is locked in at 12:30 each morning and is awakened for breakfast at 4 a.m.
"You wouldn't feed half the food in here to your dog," he said.
Once, when he says he asked a guard a question, he was put into solitary confinement. There it's cold, and the lights are on all the time, Mr. Thoburn said.
Still, "he's holding up quite well," said Jo Thoburn. "He tries to call every day."
Meanwhile, the debate over his incarceration continues in cyberspace.
"In this day and age, where we read about hardened criminals . . . being put back on the streets within a day of being arrested, it makes me wonder why this man is really being treated this way," said one message on a site called restonweb.com .
Another read: "John, keep up the fight against 'city hall.' It's your property. Develop it according to your own dictates."
copyright © 2001 News World Communications, Inc.