Jailed golf-park owner starts new round

John Thoburn, the famous Fairfax, Va., golf-park owner who was jailed this year for not changing the location of trees on his property, has filed with the county a request that would allow him to build townhouses in place of the driving range.

Saying he needs to make money to pay legal bills and fines, Thoburn submitted the proposal in June. If county supervisors approve the request, Thoburn would still need to apply for a change in zoning before he could tear up the driving range and build houses. Current zoning requirements limit development to one house for every two acres. Thoburn's proposal suggests dramatically increasing the housing allowance.

The businessman is also considering selling the property to a developer. If Edgemoore Properties buys the 46-acre golf park, Thoburn plans to rebuild the driving range on another portion of his family's 92 acres.

John Thoburn's driving range in Fairfax County, Va.

"I have a wife and three children to feed," he says on his website. "I have a mortgage to pay. I can't afford to close my business until Fairfax County bureaucrats get around to making their arbitrary zoning decisions."

The sale or development are needed, he says, to pay a $48,500 fine levied against him for contempt of court – $500 for each day he was in jail. He has also been ordered to reimburse the county $32,000 for its court-ordered re-landscaping of the golf park.

During a May hearing, Thoburn testified that the driving range loses $500,000 a year. On top of that, he is more than 60 days behind on his mortgage, owes $100,000 in back taxes to Fairfax County and $25,000 to the Internal Revenue Service.

While Thoburn may have struggled to get his venture running in the black since he filed his first zoning request for the 46-acre driving range 10 years ago, the property owner's problems began in earnest about four years ago. At that time, he was charged with zoning violations for improperly landscaping his property.

But Thoburn claimed he met the requirements as they were spelled out when he received his first permit in 1994. He said he had already planted 700 trees and shrubs at a cost of $125,000 and that a previous county official had agreed the landscaping work was sufficient. It was only after he applied for an amendment to the permit that the county interpreted the landscaping plan differently and accused him of noncompliance, he said.

Some of the trees Thoburn originally planted on the golf-park property.

But the county arborist – a different arborist than the one who initially reviewed Thoburn's plan – testified that nearly 100 trees were planted in the wrong place and 270 more needed to be planted. The property owner refused to move or add trees and was cited for civil contempt. As a result, he spent 97 days in jail.

Circuit Judge Michael P. McWeeny tired of the stalemate between the two sides and freed Thoburn on May 24. But McWeeny ordered county officials to plant the 270 additional trees and shrubs they required at the range, at a cost of $32,000.

Defenders of Property Rights, a public-interest legal foundation, is representing Thoburn in his appeal to the Virginia Supreme Court of the contempt charge. In particular, lawyers for the group will challenge the fees he has been charged.

"We look forward to having a reviewing court look at what has happened to an innocent landowner in this case," Nancie Marzulla, the group's president, stated in a recent press release.

No matter the outcome of the case, Thoburn, or the "Shrubman" as he has been dubbed, has become a hero to property-rights advocates.

"If I can be jailed for not moving trees, do I really possess my property?" asked Thoburn. "There are many ways to take away property rights. My three children are part Cherokee Indian. Their ancestors were forcibly removed from their property on the Trail of Tears. Have we learned anything in America? Are we really more civilized?"

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