After fighting the charge for two years, Pennington County Commissioner George Ferebee was convicted on Monday of violating a county zoning ordinance.
Ferebee, 77, was ordered to pay a $200 fine for maintaining on his rural Hill City 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.
The verdict and sentence came on the heels of a five-hour trial at the county courthouse before Judge Warren Johnson, a retired 4th Circuit Court judge.
The prosecution asserted that Ferebee was guilty of the violation because his septic system is located in a lot smaller than the 40 acres that qualifies for exemption.
“The defendant’s own words convict him,” Assistant State Attorney General Robert Haivala said in his closing argument. “He hasn’t complied with the ordinance.”
During cross-examination, Haivala asked Ferebee three times if he had done anything to comply with the septic system regulations after they were amended in 2010 and 2014.
“I’m exempt,” Ferebee answered the first two times. The third time, he said: “Since the ordinance exempts me, nothing is to have been done.”
Before Ferebee took the stand, Johnson reminded him that under the criminal court proceedings, he had the right not to testify in the case against him.
Ferebee has been arguing, since he was charged in 2015, that his land holdings total 250 acres and that he has never subdivided the property since purchasing it 30 years ago. The prosecution, meanwhile, has emphasized that the property is legally made up of four lots and that Ferebee’s septic system is on a 12.22-acre lot.
But defense attorney Shawn Turnow, in his closing argument, said the county hasn’t surveyed Ferebee’s Gillette Prairie Road property to determine which “sections” fit the ordinance’s description of a lot.
Turnow added that Ferebee, a longtime critic of government oversight of septic systems, “became a target” of the ordinance’s 2014 amendment. That year, the word used to describe property exempt from the septic regulation was changed from “land” to “lot.”
Ferebee, dressed in a gray suit, showed no visible reaction after Johnson announced his guilty verdict just past 6 p.m. Monday.
At one point, about 30 people filled the courtroom gallery, including state legislators Chip Campbell, Tim Goodwin and Julie Frye-Mueller. Rep. Lynne DiSanto also showed up with her husband, Pennington County Commissioner Mark DiSanto.
When given a chance to speak during his sentencing, Ferebee reiterated that he believed the zoning ordinance was unconstitutional and that it retroactively changed the legal consequences of actions that were committed before the law was enacted.
“This isn’t about me, but all the rural residents of Pennington County,” he said, vowing to continue fighting for his rights. “To the best of my knowledge, there is no other county in the United States with this kind of requirement.”
Turnow indicated that Ferebee will be appealing the verdict.
Johnson initially ordered a $300 fine before being reminded that the previous presiding judge, Eric Strawn, had set a cap of $200. Strawn also ruled, in a May 2016 order, that Ferebee wouldn’t be given any jail time should he be convicted.
Ferebee’s lawyer had asked Johnson to waive the fine, or at most, to impose no more than $50.