April 25, 2001

     A Fairfax County judge yesterday returned to jail a Reston developer whose dispute with county officials over shrubs has made him a national and international symbol of an Internet-driven property rights movement.

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     John Thoburn had been expected to be released yesterday, his 68th day in jail for not complying with county zoning ordinances on shrubbery around his golf course.
     But neither he nor Fairfax County is willing to budge, so the self-proclaimed political prisoner will remain in the county jail indefinitely over the well-publicized landscaping dispute.
     Saying "the last thing I want to do is put Mr. Thoburn in jail," Fairfax County Circuit Judge Michael P. McWeeny ordered him back to his cell following a brief hearing yesterday.
     It seems, the judge commented at one point, that both sides will only accept "unconditional surrender."
     At issue is how many trees and shrubs Mr. Thoburn is required to plant on his 46-acre Golf Park at Hunter Mill, near Reston. But foliage is just the latest chapter in a long-standing feud between the businessman and county.
     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. County officials say Mr. Thoburn chooses to obey some zoning regulations and ignore others.
     To Mr. Thoburn, 43, who has come to be known as "the Shrubman," the matter has become a crusade.
     His family fields international media calls, sports "Free John Thoburn" bumper stickers and, with the help of the Washington-based watchdog group Defenders of Property Rights, has established a defense fund.
     "It´s crazy," sister-in-law Jo Thoburn said outside the courthouse. "It´s time to perhaps step up our legal approach.
     "We will not shut down the business," she said. "This is a matter of basic property rights."
     Mr. Thoburn has said he planted more than 700 trees and shrubs at a cost of $125,000 in 1994, as required. Then, the county changed its rules and demanded that 92 be moved and 50 more be added, he said. Mr. Thoburn refused.
     The county contends that 146 trees and 124 shrubs are still missing.
     Yesterday, Judge McWeeny, as he has done in the past, demanded that Mr. Thoburn come into compliance with county regulations or close his golf range.
      "We´re open to any proposal that will bring his property into compliance with the law," county spokeswoman Mernie Fitzgerald said in a phone interview. "We´ve been responsive with him all along."
     Mr. Thoburn´s attorney, Lorenzo L. Bean, refused county attorney Jan Brodie´s suggestion to free Mr. Thoburn if he agreed to pay a fine and close his range.
     "The status quo remains the same," Miss Brodie told the court. The golf range, she said, has been operating illegally for more than three years.
     Judge McWeeny refused a request by Mr. Bean to free his client, keep the range open and leave it to the county zoning board to settle the matter at a June 5 hearing.
     The judge, insisting the matter already was litigated, also would not let Mr. Thoburn take the stand to reiterate his case.
     Mr. Thoburn, led away after the proceedings in his dark county-issued jumpsuit, returned yesterday to what he has described as sleep deprivation, bad food and even, at times, solitary confinement.
     Jail officials have argued his account of several of the conditions, saying Mr. Thoburn has never been placed in any kind of solitary confinement
     His attorneys, meanwhile, don´t know how long he will stay locked up.
     "Unfortunately, nothing happened today," said Roger Marzulla, a Defenders of Property Rights attorney. "There really is no plan for getting him out of jail."

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Updated at 4:00 a.m.