L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 116, April 9, 2001
Happy Birthday, Eleanora Fagan!
Don't Just Free John Thoburn, Vindicate Him
by Vin Suprynowicz
Special to TLE
The government of the Washington, D.C. suburb of Fairfax County, Virginia, opened a golf complex a few years back, not far from the private Reston golf driving range owned by 43-year-old native John Thoburn.
Thoburn says the tax-funded facility took away one third of his business.
But what he -- and columnists for The Washington Post -- find more interesting are the standards which county officials have applied to their own facility, and how they differ from the rigorous zoning regulations enforced against Thoburn.
"To get my occupancy permit," Thoburn wrote in a guest column in the Post March 15, "I planted over 700 trees around the range at a cost of $125,000 in 1994. But now Fairfax County demands that 98 trees be moved to different locations, despite prior inspections and approvals. Moving the trees provides no public benefit but would waste thousands of dollars and damage the trees. ...
"The berm [separating Thoburn's facility from the busy Dulles Toll Road] is a Catch-22. Two contradictory zoning conditions require two different heights. ... Fairfax County still refuses to say which berm height they want. And they still haven't told me exactly which trees are in the wrong location and need to be moved. ..."
Although he is charged with not completing the berm as required, "Anyone who drives the Dulles Toll Road can see the finished berm, which has been completed for over as year," Thoburn writes.
"This zoning harassment has been going on for years. One zoning regulation ... allows a 'snack food concession.' Yet Fairfax County issued a zoning violation for selling hot dogs and Cokes. They say we can sell pre-wrapped roast beef deli sandwiches, but not microwave hot dogs. We can sell Coca-Cola in a bottle or can, but not in a cup. Meanwhile my competitors, the Fairfax County golf facilities, have carte blanche from the county to sell beer and pizza."
Post Metro columnist Marc Fisher picks up the tale: When "the county a couple of years ago opened its own golf complex not too far from the Thoburn range, the county did not require itself to plant hundreds of trees or build massive berms, and the county did permit itself to offer putting greens and miniature golf, neither of which Thoburn is allowed to offer."
When Thoburn last year balked at spending another $30,000 to move 98 trees which the county says are in the wrong location, he was ordered to close. He refused, was taken to court, held in contempt, and "put away until he sees the light and repents and shuts his business, or plants the trees," columnist Fisher reported on March 22.
That's right: Golf park owner John Thoburn, a "family man with strong faith, an economics degree and no criminal record" has been sitting in the Fairfax County Jail for six weeks now for refusing to move his trees.
The other inmates call Thoburn "Shrub," in acknowledgement of the nature and seriousness of his offense, columnist Fisher reports. He hasn't seen his kids since January (his wife and sons moved to Texas when the county threatened to throw Mrs. Thoburn in jail, too).
The county has jailed him and is continuing to assess him fines of $1,000 per day "for operating a legal business on my own property," Thoburn wrote to the Post on March 15. "So much for trying to live the American Dream of being a small business owner."
"Property rights are human rights," the inmate continued. "Fairfax County's own George Mason wrote the Virginia Declaration of Rights, adopted in 1776. It guarantees Virginians 'certain inherent rights,' including 'the means of acquiring and possessing property.' ... If I can be jailed for not moving trees, do I really possess my property? 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 really learned anything in America?"
"I have 800 years of law on my side," Thoburn told Fisher of the Post. "The Magna Carta says fines must be proportional to the offense. Is incarceration proportional to not moving some trees? If they say I can't sell Coke from a cup but only from a can, or I can't have a jukebox, or I've got to move a tree 10 feet, then I don't own that property anymore."
Foolishly, most Americans long ago embraced planning and zoning codes -- and have given them little thought since -- on the assumption they merely formalized what was common sense in the first place: "We property owners mutually agree to build only residential developments up here around the lake; those wishing to build a slaughterhouse or aluminum smelter should locate it down by the railroad tracks."
But the bureaucrats can never leave it at that, can they? Year after year they whine for bigger budgets, put their nephews and cousins on the payroll as $50,000 "enforcement officers," generate ream after ream of new "code and regulation" to keep everybody busy until shrub placement is mandatory, and everything that isn't mandatory is forbidden.
The nature of a thing is best judged by its fruit, and the evil fruit of planning and zoning is a law-abiding family man like John Thoburn sitting in prison while his wife and children flee the local jurisdiction in terror, for all the world like terrified Lincolnshire peasants fleeing the soldiers of Prince John.
The solution here is not merely to urge the Fairfax County Board of Supervisors to back off in this particular case, while tens of thousands of other American property owners see their rights and freedoms similarly stripped away in slightly less outrageous pick-and-rolls every day.
There is no compromise with creeping fascism -- defined by any decent dictionary as an economic system in which private "owners" are allowed to continue paying taxes on "their" property, while every major decision about the use of that property is made by some government functionary.
One does not solve the problem of "30 percent sewage in the drinking water" by reducing the sewage level to 20 percent and announcing "There: much better!" No, the solution here is to restore the property rights which lay at the heart of the free-market system which made ours the hardest-working, most prosperous nation in the world. Every planning and zoning code in America must be abrogated and repealed, just as we would hitch a tractor to the tail of a rotting whale and haul it away from the beach where our children swim.
Don't just free John Thoburn; vindicate him.