Court Dismisses Citizen Lawsuit, Questions Remain About Proper Permitting Process
On January 21, 2026, Judge G.D. Morgan Jr. issued an order dismissing a lawsuit brought by Dennis Floyd Bivins against York County and several of its officials regarding the Silfab Solar manufacturing facility in Fort Mill, South Carolina. The 22-page order, which was likely more than necessary for an order of this sort, dismissed the complaint with prejudice, finding that Bivins lacked standing to challenge the project and failed to state valid claims. However, a closer examination of the court’s reasoning alongside York County’s own zoning procedures reveals significant concerns about whether proper processes were followed.[1]
The Court’s Decision
Judge Morgan’s order addressed a lawsuit challenging York County’s approval of Silfab Solar’s manufacturing operations at 7149 Logistics Lane. Bivins, a neighboring property owner, sought declaratory relief, injunctions, and writs of mandamus and prohibition to halt the project, arguing that the county had issued permits without proper zoning compliance approval.
The court dismissed the case on multiple grounds, primarily finding that Bivins failed to establish standing under either statutory or constitutional standards. Judge Morgan concluded that Bivins had not alleged sufficient “special damages” as required by South Carolina Code Section 6-29-950(A), which allows adjacent property owners to challenge zoning violations. The court characterized Bivins’ concerns as “conjectural and generalized grievances concerning future public health and welfare concerns” rather than particularized injuries.
Critically, the court relied heavily on the fact that York County had passed an “Inducement Ordinance” and executed a Fee in Lieu of Tax (FILOT) agreement with Silfab in September 2023. Judge Morgan found that this legislative action “ratified all prior actions taken with respect to the Project,” including a December 27, 2022, “Zoning Compliance Verification” letter issued by a county zoning technician, not the Zoning Administrator.
The court further held that this Inducement Ordinance was a “more specific” ordinance that controlled over general zoning code provisions and included language repealing any conflicting ordinances. According to Judge Morgan’s reasoning, this legislative approval essentially validated Silfab’s development regardless of whether standard zoning procedures had been followed.
York County’s Own Rules and Decisions Tell a Different Story
Here’s where the court’s reasoning becomes problematic. York County’s own zoning code and website materials, submitted as evidence in this case, clearly indicate that “zoning verification” and “zoning compliance” are two distinct processes with different requirements, applications, and legal implications.
According to York County’s website (www.yorkcountygov.com/377/Zoning), the county maintains distinct application forms for different zoning purposes. The “Zoning Verification Request Form” is a simple one-page document that allows applicants to verify whether a proposed use is generally compatible with a property’s zoning district.[2] The “Zoning Compliance General Application,” by contrast, is a comprehensive two-page document required before establishing any new use or changing an existing use on a property.[3]
The distinction is not merely administrative. York County Zoning Code Section 155.262 explicitly states: “Prior to a change in use or establishment of a new conditional, accessory, or temporary use, an applicant must receive zoning compliance approval.” This is not optional language; it is a mandatory requirement triggered whenever a property’s use changes.
The Court’s ruling is also problematic because a previous decision from the same circuit would lead one to believe that Bivins should have been granted standing in his case. York County’s own attorneys filed a response to a suit brought by Silfab challenging the BZA decision, stating that a neighboring property owner, Walter Buchanan, has standing to intervene in the Silfab matter. Honorable Marvin Dukes granted this property owner standing on October 22, 2024, so why is the County now changing their tune?[4] It seems fairly evident that both the Attorneys for the County and other judges on the same circuit where Bivins’ case was decided would disagree with Judge Morgan Jr.’s decision that Bivins lacked standing.
What Silfab Actually Received
The evidence shows that Silfab’s representatives submitted only a “Zoning Verification Request Form” in December 2022. Notably, this one-page form was submitted by Judi Quinby, an attorney representing the property landlord, not Silfab itself. The form did not mention Silfab by name.
In response, York County zoning technician Emily Stephens (not Zoning Administrator) issued a letter on December 27, 2022, titled “Zoning Verification for 7190000201.” This letter stated that solar panel manufacturing “is considered electrical equipment, applicant, and component manufacturing and is therefore principally permitted” in the Light Industrial district. However, the letter also included this crucial caveat: “Please be advised that establishment of this use at the subject site will require civil site plan review.”[5]
Here’s what’s missing: There is no evidence in the record that Silfab ever submitted the required two-page “Zoning Compliance Application” that York County’s own procedures mandate for a change of use. This application includes critical requirements that were apparently never satisfied.
The Missing Legal Requirements
York County’s Zoning Compliance Application includes specific acknowledgement requirements that directly implement state law. Most significantly, the application requires applicants to certify compliance with South Carolina Code Section 6-29-1145, which mandates that planning agencies inquire whether any property “is restricted by any recorded covenant that is contrary to, conflicts with, or prohibits the permitted activity.”
This is not a technicality; it’s a state law designed to protect property rights and prevent conflicts between zoning approvals and private deed restrictions. The statute explicitly states that if a planning agency has “actual notice” of a conflicting restrictive covenant, it “must not issue the permit unless the local planning agency receives confirmation from the applicant that the restrictive covenant has been released.”
The two-page Zoning Compliance Application prominently features this requirement, highlighted in yellow, asking, “Is this parcel of land restricted by any recorded covenant that is contrary to, conflicts with, or prohibits the activity that is being applied for? □ Yes □ No”
There is no evidence that Silfab was ever asked this question or provided this certification. The one-page Zoning Verification Request Form contains no such inquiry. This matters because the Baxter Lane property is part of a multi-county industrial park with specific development agreements and potential deed restrictions that may govern allowable uses.
The Change of Use
The procedural failure becomes even more significant when considering what actually happened at the site. The property was originally approved and constructed as a warehouse facility. Internal York County emails from January 2023 confirm that county officials understood Silfab’s manufacturing operation represented a fundamental change in use that triggered additional requirements[6].
In a January 6, 2023, email, York County Development Services Manager Josh Reinhardt explicitly told Silfab’s representatives: “Regarding the requirement for a set of plans showing any improvements on the site, this is standard when buildings are proposed to be occupied by a different use than initially approved for. This building was approved as a warehouse, so a change to manufacturing with outdoor storage and many more employees than initially anticipated would trigger the need for revised plans.[7]”
Reinhardt continued, “There appears to be 288 parking spaces on the site, and I understand there will now be over 1000 employees while the initial site plan was anticipated for warehouse with 150 employees.” He noted concerns about outdoor chemical storage tanks and whether they would “impact any vehicle circulation or cause any building code related issues.”
These are precisely the types of concerns that the Zoning Compliance process is designed to address. Yet the evidence suggests that instead of requiring Silfab to go through the formal Zoning Compliance Application process as mandated by Section 155.262, county staff attempted to handle these issues informally.
State Law Requirements Also Ignored
Beyond York County’s own ordinances, South Carolina state law also appears to have been circumvented. Section 6-29-950 states unequivocally, “It is unlawful for other officials to issue any permit for the use of any land, building, or structure, or the construction, conversion, demolition, enlargement, movement, or structural alteration of a building or structure without the approval of the zoning administrator.”
The December 2022 zoning verification letter was not signed by the Zoning Administrator but by a “York County Zoning Technician.” While the court dismissed concerns about this distinction, citing general staffing arrangements, the statute’s language is specific, it requires “approval of the zoning administrator,” not approval by zoning staff generally.
Moreover, Section 6-29-950 provides that “No permit may be issued or approved unless the requirements of this chapter or any ordinance adopted pursuant to it are complied with.” If York County Zoning Section 155.262 requires zoning compliance approval prior to a change in use, then state law requires that this compliance approval actually be obtained before permits are issued.
The FILOT Agreement Cannot Override Zoning Law
The court in the Bivins case placed significant weight on the September 2023 FILOT agreement and Inducement Ordinance, finding that these legislative acts “ratified” the earlier zoning verification letter and authorized the project regardless of procedural deficiencies. This reasoning is deeply problematic for several reasons.
First, the FILOT agreement language states that it “ratified all prior actions taken with respect to the project,” but this cannot ratify actions that never occurred.[8] If Silfab never submitted a Zoning Compliance Application and never received zoning compliance approval, there was no such action to ratify. The verification letter explicitly stated that additional civil site plan review would be required, an acknowledgement that the compliance process was incomplete.
Second, allowing a FILOT agreement to override mandatory zoning procedures would effectively create two classes of development in York County: regular applicants who must follow all Zoning compliance requirements, and economically favored projects that can bypass these requirements through economic development agreements. This cannot be what the law intends.
Third, the Inducement Ordinance’s provision that conflicting ordinances are “hereby repealed” cannot reasonably be interpreted to repeal fundamental zoning compliance requirements. If the County Council intended to exempt Silfab from the mandatory requirements of Section 155.262 and S.C. Code Ann. 6-29-950, surely it would have stated this explicitly rather than burying it in boilerplate language about conflicting ordinances.
Broader Pattern of Procedural Shortcuts
Perhaps most troubling is what the email correspondence reveals about how York County officials approached this project. Rather than insisting on formal compliance with published procedures, county staff appeared willing to work around requirements to accommodate an economically important project.
When Silfab’s representative expressed concern that the Zoning Compliance requirements “seem too onerous for a site that is already constructed and is occupancy ready,” county officials responded by trying to minimize the burden rather than explaining why the requirements exist and must be followed.
A June 2023 Traffic Impact Analysis Addendum reveals the extent of the changes involved. The document notes that while the original 2019 approval was for warehousing, “the development has since been constructed, and one of the two buildings is now planned to house manufacturing uses.” The study was needed to “determine the potential impacts to the surrounding transportation system created by the minor increase in traffic generated by the change in program.”
Calling a change from 150 warehouse employees to over 1,000 manufacturing employees a “minor increase” strains credibility. This was precisely the type of substantial change in use that zoning compliance procedures exist to evaluate and regulate.[9]
Denial of Due Process and Appeals
The procedural irregularities in the Silfab case extend beyond merely bypassing zoning compliance requirements. They also appear to have systematically denied neighboring property owners their statutory right to appeal zoning decisions, a fundamental protection guaranteed under South Carolina law.
South Carolina Code Section 6-29-1150 (c) explicitly grants property owners the right to appeal civil site plan approvals to the Planning Commission. These rights exist to ensure that citizens have a meaningful opportunity to challenge governmental decisions that affect their property interests. Yet in this case, York County appears to have structured its approval process in a way that effectively eliminated any opportunity for appeal.
The county’s approach created a procedural Catch-22. When the zoning verification letter was issued in December 2022, county officials maintained it was not an approval and therefore could not be appealed. When the FILOT agreement was executed in September 2023, officials claimed it had nothing to do with zoning and therefore also could not be appealed. Neighboring property owners were left with no clear zoning decision to challenge through the normal appeal process.
The only avenue available was to submit an administrative question about the zoning status of the Silfab site and appeal the answer. As seen in the case of Bivins, the court would rather throw out questions about the Silfab site on procedural grounds rather than actually answer whether zoning regulation were being followed or not. This has effectively left the people of York County without a way to appeal or challenge the decisions the county made about the zoning of the Silfab site.
This is not a hyperbole; York County has continuously closed off avenues to challenge their decisions in this situation. A member of CAGI, Andy Lytle, explained the timeline of citizens challenging the zoning of the Silfab site. Since there was never an official zoning approval to appeal, Walter Buchanan asked the county some questions about the zoning of the Silfab parcel. They took those answers and appealed it to the Board of Zoning Approvals. According to Lytle, once it appeared that York County was ignoring the BZA ruling, citizens started to watch York County’s website for any issuances of construction permits to Silfab as they knew this indicated approval of any Civil Plans.
On June 28, 2024, York County posted the first construction permit for Silfab which Buchanan quickly responded to by submitting an appeal of the accompanying civil plan approval. Throughout July, 2024, Lytle on behalf of Buchanan submits multiple applications to appeal the Civil Plan approval but are continuously denied.
On July 23, 2024, York County responds, saying that they were unaware of any state law that would give a non-applicant standing to appeal the Civil Plans. Lytle responded, showing South Carolina Code Section 6-29-1150 (c) gave Buchanan standing but no further response was given by the County. Lytle forwarded this showing, along with their request, to the County Manager, County Attorney, and Clerk of the County Council in August 2024, but they again received no response.
This demonstrates that York County avoided allowing citizens to exercise their rights by not giving an approval to appeal, ignored their rights by pretending the BZA ruling did not happen, and denied their rights by not letting them appeal to the planning commission. Overall, York County’s pattern of not answering is not only frustrating but extremely troubling.
The County’s Inadvertent Admission
Perhaps most revealing is York County’s own choice of terminology in defending its actions. Through their defense attorney, the county has consistently referred to the December 2022 letter as a “zoning compliance verification”, a three-word phrase that does not appear anywhere in York County’s zoning ordinances, application forms, or published procedures.
The construction of this phrase is significant. By adding the word “compliance” between “zoning” and “verification,” the county appears to be trying to transform what was clearly a zoning verification into something that sounds like zoning compliance approval without being one. It is a telling admission that the county recognizes the distinction between verification and compliance yet simultaneously attempts to blur that distinction retroactively. This formulation furthers the contention that York County is disregarding its own procedures in favor of approving the Silfab site.
Conclusion
Judge Morgan’s order dismissing Dennis Bivins’ lawsuit under a lack of standing aside, there still exists an important question about whether York County followed its own zoning procedures and applicable state law when approving the Silfab project. The evidence strongly suggests it did not.
York County’s own website distinguishes between zoning verification and zoning compliance. The county’s own zoning code requires zoning compliance approval prior to any change in use. The county’s own application forms implement state law requirements regarding restrictive covenants. And the county’s own staff acknowledged in writing that Silfab’s manufacturing operation represented a change in use from the original warehouse approval.
Yet somehow, none of these requirements were formally satisfied. Instead, county officials appear to have substituted informal processes and after-the-fact legislative ratification for the mandatory procedures that apply to everyone else.
If York County’s published zoning procedures can be bypassed whenever a project is economically desirable, then those procedures become meaningless. Property owners and neighboring residents rely on these processes not as technicalities but as protection. These processes ensure that land use changes are properly evaluated, that concerns are addressed, and the state law requirements are satisfied.
The court’s willingness to accept the FILOT agreement as ratifying a process that never occurred sets a troubling precedent. It suggests that local governments can effectively exempt favored projects from zoning compliance requirements through economic development agreements, which results in undermining the uniformity and predictability that zoning law is meant to provide.
Standing aside, the issues in this situation remain unsolved. York County should clarify whether it intends to follow its published zoning procedures for all applicants, or whether economic development projects occupy a special category exempt from the requirements that apply to everyone else. The community deserves an answer.
[1] Bivins v. York County Court Order
[2] Zoning Verification Request Form
[3] Zoning Compliance General Applications
[4] Silfab Solar v. York County Board of Zoning Appeals Respondent Brief
[5] Packet Item A
[6] Packet Item D
[7] Packet item E
[8] Packet Item C
[9] Packet Item D
York County Packet: