- The Washington Times - Tuesday, July 17, 2001

John Thoburn, the Fairfax County businessman who championed property rights by sitting in a jail cell for 98 days rather than plant 270 bushes the county insisted his golf range needed, is selling the property — but he says he is not selling out his principles.

The feisty entrepreneur, who came to be known as the "Shrubman" during his internationally publicized landscaping dispute with local government, has come up with another idea that's also bound to infuriate county officials — he wants to replace the driving range in Hunter Mill with an outsized housing community that pushes zoning laws to the edge of the envelope.

Mr. Thoburn said he's negotiating with builder Edgemoore Homes because he is saddled with debt from the shrub war.

"I don't know what choice I have," Mr. Thoburn said yesterday. "This is still a David-and-Goliath fight against the government."

"It's nowhere near over," said Mr. Thoburn's sister-in-law, Jo.

The 46-acre golf park won't disappear if the deal with Edgemoore goes through. Mr. Thoburn plans to rebuild his symbol of rebellion on another portion of the family's 92 acres.

Mr. Thoburn's longtime zoning battle with the county came to a head earlier this year when a judge jailed the businessman for violations that included refusal to plant hundreds of trees and shrubs around the range.

The golf-range owner claimed he met the requirements and is a victim of bureaucratic harassment. The zoning board accused him of noncompliance.

Circuit Judge Michael P. McWeeny, tired of the stalemate between the two sides, freed Mr. Thoburn on May 24, but ordered county officials to plant the 270 additional trees and shrubs they required at the Reston area range.

The judge also levied a $48,500 fine on Mr. Thoburn — $500 for each day he was in the jail — and ordered that he reimburse the county for its work.

Mr. Thoburn said he does not have the $48,500 or the $32,000 to reimburse the county for the plantings. He testified during a May hearing that the range loses $500,000 a year, that he was 60 days behind on his mortgage, and owed $100,000 in back taxes to Fairfax County and $25,000 to the Internal Revenue Service.

"I have to keep going deeper into debt, and I can't continue to keep doing it," Mr. Thoburn said.

To add to his woes, Mr. Thoburn said he discovered the Virginia Department of Transportation will need to take up to 30 acres of his property for the interchange upgrade at Hunter Mill Road and the Dulles Toll Road.

"It's too early to be saying that," said Joan Morris, a VDOT spokeswoman.

She said about a dozen concepts are being considered for the interchange, which will be narrowed down to three or four this fall.

In the meantime, Mr. Thoburn is seeking a change to the county's comprehensive plan to make room for his housing development, which is at least eight times too big for the land it would occupy.

That move is likely to lead to yet another property-rights battle with the county.

His land is considered "low-density residential" and both he and Edgemoore want to increase the allowance of homes per acre.

A representative from Edgemoore did not return a call for comment yesterday.

Mr. Thoburn, pointing out a new six-story office building is going up a few hundred feet from his golf range, doesn't see a problem with the increased development

County spokeswoman Merni Fitzgerald said she has not seen Mr. Thoburn's request, one of about 200 filed between May 14 and June 29. The county's planning commission will begin its review in the fall, she said.

Republican Supervisor Stuart Mendelsohn, whose districts covers part of the Thoburn land, thinks the idea is a bad one.

"It's out of character for that area," said Mr. Mendelsohn, who represents the Dranesville District.

Most landowners in the area are allowed one house per two acres, he said. Mr. Thoburn's request is for eight to 12 homes per acre.

As for the landscaping dispute, lawyers for a public-interest legal foundation called Defenders of Property Rights are appealing Mr. Thoburn's case to the Virginia Supreme Court.

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.

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