A Disappointing Day for the Shrubman

WASHINGTON – A Virginia judge declared that 'Shrubman' John Thoburn, who has spent 68 days in jail, must stay locked up until he complies with county landscape demands at his golf range. 

The Fairfax County zoning board has insisted that 90 out of the 700 trees Thoburn planted were of the wrong kind or in the wrong place and must be moved.  Judge Michael P. McWeeny refused to consider Thoburn's argument that the county's list of demands is crazy.

"They told us to put shrubbery under decking.  They told us to move trees six feet. There was just no way to comply with the list they gave us," Jo Thoburn, Thoburn's sister-in-law, who is running the range during Thoburn's incarceration, told FOX News.

McWeeny ruled that it is up to a local zoning board of appeals and not the court to change the requirements.  He has offered to hold a new hearing if Thoburn agrees to compromise.

The zoning board of appeals isn't scheduled to meet until June 5, even though Thoburn requested an appeal hearing in January before he was sentenced to prison.

Thoburn said he would fight the board to the bitter end because the conditions it has placed on his range and his release from prison are based on erroneous requirements.  The board demanded that trees and shrubs be planted to protect neighboring properties from the proposed night lights Thoburn wanted to add to the range.  But Thoburn abandoned the plan to add lights when he heard the county's other condition. 

"Mr. Thoburn still has the right to put lights on his property — he just can't power them with a generator," Fitzgerald said.

Thoburn said forget it — he won't add lights since he can't use electricity.  But he doesn't understand why he is still required to plant the trees and shrubs.

"There is no requirement to comply with a condition on a permit that you are not using," said Roger Marzulla, a lawyer and board member of Defenders of Property Rights, who has taken an interest in Thoburn's case.  "Mr. Thoburn is not using a permit to have lights and therefore there is no need to have trees and other shrubs screening the neighbors from those lights."

As the impasse persists, the county maintains that Thoburn must close down the range or stay in jail.

"The law is the law.  Mr. Thoburn is not in compliance with the law and he has to put the landscaping in," said Merni Fitzgerald, spokeswoman for the county zoning board.

But Thoburn's lawyer, Lorenzo Bean, said that telling Thoburn to close his range is also an unreasonable demand.

"If you can imagine an ongoing business trying to expand its use, and the county insisting that you shut the business down while you build your addition or do something else, it's not an appropriate response," Bean said.

"I have complied with all of my original conditions for my driving range, all the zoning conditions.  And until I expand the business, they cannot require that I meet this additional condition.  I mean, it's like changing the rules in the middle of the game," Thoburn said.

Both Thoburn and the county seem to be looking for complete and total victory.  But the Shrubman will stay in jail indefinitely, or at least until — as the judge said — "one side or the other blinks."