A Pennington County commissioner convicted of violating a county zoning ordinance has been granted a new trial in May following his appeal.
George Ferebee, 77, a commissioner from rural Hill City, was found guilty in September of maintaining at his property a septic system that lacked an operating permit. The zoning ordinance states that on-site wastewater treatment systems need to be pumped, inspected and issued permits regularly.
Retired 4th Circuit Judge Warren Johnson, who tried the case, ordered Ferebee to pay a $200 fine at the end of a daylong trial on Sept. 25. The court earlier decided not to impose a jail sentence.
The following month, Ferebee paid the fine. He also appealed the 7th Magistrate Court conviction in circuit court.
His lawyer, Shawn Tornow, cited “errors of law that were committed prior to and/or at his trial in this matter,” according to Ferebee’s notice of appeal on Oct. 20.
Ferebee has since been scheduled a circuit court trial on May 16 and 17 at the Pennington County Courthouse, according to court records.
In cases involving the alleged violation of a county ordinance, South Dakota law gives defendants the right to appeal a magistrate court verdict in circuit court, as well as the right to a new trial in circuit court.
It's not yet been settled if it will be a jury trial or another bench trial, said Assistant Attorney General Robert Haivala, who is prosecuting the case.
John Bastian, a retired judge of the 4th Circuit Court, was assigned to handle the appeal. Jerome Eckrich, a retired judge from the same circuit, was initially appointed but Ferebee’s lawyer requested a change of judge, saying he believes Ferebee cannot have a fair and impartial hearing under Eckrich. No reason was provided in Tornow’s Nov. 14 sworn statement.
Ferebee was charged in October 2015. He has asserted that he is exempt from the septic system ordinance because his land holdings total 250 acres — more than the 40 acres that qualifies for exemption. Ferebee says he has never subdivided the property since purchasing it 30 years ago.
The state argues that Ferebee's property is legally made up of four lots and that the septic system is on a 12.22-acre lot.
During his sentencing, Ferebee said he believes the zoning ordinance is unconstitutional and that it retroactively changes the legal consequences of actions that were committed before the law was enacted.
Ferebee is due back in court for a hearing on Feb. 27.
His term as county commissioner for District 1 ends Dec. 31, and he hasn't publicly announced whether he's going to run again. Ron Rossknecht, a real-estate appraiser and resort executive, declared in November that he is running for the District 1 commissioner seat in this year's election.