Mcallen City Zoning Code
ARTICLE II
ADMINISTRATION
§ 138-26 Enforcement of chapter.
(a)
Director of planning.
The provisions of this chapter shall be administered and enforced by the director of planning, or his duly authorized representative, of the city.
(b)
Right to enter.
The director of planning or any duly authorized person shall have the right to enter upon any premises at any reasonable time for the purpose of making inspection of buildings or premises necessary to carry out the duties in the enforcement of this chapter.
(c)
Stop orders.
Whenever any building work is being done contrary to the provisions of this chapter, the director of planning or his duly authorized representative may order the work stopped by notice in writing served on the owner or contractor doing the work or causing such work to be done, and any such person shall forthwith stop such work until authorized to proceed with the work.
(1966 Code, § 32-4)
§ 138-27 Application requirements for building permits.
In addition to the requirements set out in chapter 22 of this Code, all applications for building permits shall be accompanied by:
(a)
Accurate site plans drawn to scale and showing:
(1)
The actual shape and dimensions of the lot to be built upon;
(2)
The exact size and locations on the lot of the buildings and accessory buildings then existing;
(3)
The setback lines within which the proposed building and structure shall be erected or altered;
(4)
The existing and intended use of each building or part of building;
(5)
The number of families or housekeeping units the building is designed to accommodate; and
(b)
Such other information with regard to the lot and neighboring lots as may be necessary to determine and provide for the enforcement of this chapter. A plan inspection period shall be completed as soon as practical, but not to exceed ten days.
(1966 Code, § 32-5)
§ 138-28 Effect of chapter upon existing permits, agreements, rights, etc.
(b)
Preserving rights in pending litigation and violations under existing ordinances.
By the passage of this chapter, no presently illegal use shall be deemed to have been legalized unless such use falls specifically within a use district where the actual use is a conforming use. Otherwise, such uses shall remain nonconforming uses where recognized, or illegal uses, as the case may be. It is further the intent and declared purpose of this chapter that no offense committed, and no liability, penalty or forfeiture, either civil or criminal, shall be discharged or affected by the adoption of the ordinance from which this chapter is derived; but prosecutions and suits for such offenses, liabilities, penalties or forfeitures may be instituted, or causes presently pending be proceeded with in all respects as if such prior ordinance had not been repealed.
(c)
Completion of existing buildings.
Nothing in this chapter or in any amendments hereto which change district boundaries shall require any change in the plans, construction or designated use of a building which shall be completed in its entirety within two years from the date of the passage of the ordinance from which this chapter was derived or any amendments to this chapter and was authorized by building permit before the passage of the ordinance from which this chapter is derived, provided construction shall have been started within 90 days of the effective date of the ordinance from which this chapter is derived. Building construction is hereby defined as the placing of construction materials in permanent position and fastened in a permanent manner.
(1966 Code, § 32-6)
§ 138-29 Appeals.
Any persons, jointly or severally, aggrieved by any decision of the planning and zoning commission, may present to the board of commissioners a petition, duly verified, setting forth that such decision is unjust, in whole or in part, and specifying the grounds of injustice. Such petition shall be presented to the board of commissioners within ten days after the final decision of the planning and zoning commission, and not thereafter, for notification and calling of a public hearing to hear and act on the appeal.
(1966 Code, § 32-24)
§ 138-41 Organization.
(a)
A board of adjustment is hereby created in accordance with the provisions of V.T.C.A., Local Government Code § 211.008. It shall consist of five regular members and four alternates whose method of appointment, terms, qualifications, attendance requirements, and governance shall conform to the applicable provisions of chapter 2, article III, division 1 of this Code. The alternate members shall serve in the absence of one or more regular members so that all cases to be heard by the board of adjustment will be heard by a minimum of four members. Vacancies shall be filled for the unexpired term of any member by appointment by the board of commissioners, provided that in the event of a regular member vacancy first consideration is given to the existing alternate members in the order of their seniority in that position.
(b)
A quorum shall consist of four members of the board of adjustment.
(1966 Code, § 32-15; Ordinance 2005-53, § 1, adopted 6/13/2005; Ordinance 2011-71, adopted 12/12/2011; Ordinance 2013-69, § II, adopted 8/26/2013)
§ 138-42 Procedures and appeals.
Procedures before the board of adjustment to and from such board shall be governed by the provisions of V.T.C.A., Local Government Code §§ 211.008—211.011.
(1966 Code, § 32-16)
§ 138-43 Powers.
The board of adjustment shall have the following powers, and it shall be its duty:
(a)
To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter.
(b)
In hearing and deciding appeals, to grant special exceptions in the following instances:
(1)
Interpret the provisions of this chapter in such a way as to carry out the intent and purpose of the chapter, as shown on the maps fixing the several districts, accompanying and made a part of this chapter, where the street layout actually on the ground varies from the street layout as shown on such maps.
(2)
Permit the reconstruction of a nonconforming building which has been damaged to the extent of more than 50 percent of its replacement cost.
(3)
Waive or reduce the parking and loading requirements in any of the districts whenever the character or use of the building is such as to make unnecessary the full provisions of parking or loading facilities, or where such regulations would impose an unreasonable hardship upon the use of the lot, as contrasted with merely granting an advantage or a convenience.
(4)
If no structural alterations are made, any nonconforming use of structure, or structure and premises in combination, may, as a special exception, be changed to another nonconforming use, provided the board of adjustment shall find that the proposed nonconforming use is not more nonconforming in the district as the previously existing nonconforming use.
(c)
In permitting such exceptions, the board of adjustment may require any conditions and safeguards as it shall deem appropriate to see that the purpose and intent of this chapter are met, and the violation of any such conditions or safeguards shall constitute a violation of this chapter.
(d)
The board shall have the power to authorize upon appeal in specific cases such variances from the terms of this chapter as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship, and so that the spirit of this chapter shall be observed and substantial justice done. Such variances from the strict application of the terms of this chapter must be in harmony with its purpose and intent, and shall be authorized only when the board is satisfied that a granting of such variation will not merely serve as a convenience to the applicant. At the same time, the surrounding property must be properly protected. In making its determination, the board must be assured that the applicant has proved the following:
(1)
That the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone;
(2)
That the plight of the owner is unique and not shared in general by others in the neighborhood also as a result of this chapter and thus perhaps requiring rezoning; and
(3)
That the use to be authorized by the variance will not alter the essential character of the locality.
(e)
In exercising the abovementioned powers, the board may, in conformity with the provisions of V.T.C.A., Local Government Code § 211.009 et seq. and this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.
(f)
The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision or determination of any administrative official, or to decide in favor of the applicant on any matter upon which it its required to pass under this chapter or to effect any variation in such chapter.
(1966 Code, § 32-17; Ordinance 2008-83, § I, adopted 12/8/2008; Ordinance 2017-10, § I, adopted 1/23/2017)
§ 138-44 Administrative costs.
The board of adjustment, with the concurrence and approval of the board of commissioners, shall determine and set forth a fee schedule for the purpose of recovering the administrative costs of processing requests and the public hearings called for by this chapter. Such fee shall be paid by the applicant and shall not be designed for restricting an applicant's ability to seek a hearing and/or to generate revenue for other than recovery of actual administrative cost incurred by the city.
(1966 Code, § 32-18)
§ 138-56 General policy.
The board of commissioners may from time to time amend, supplement or change by ordinance the boundaries of the districts or the regulations established in this chapter.
(1966 Code, § 32-19)
§ 138-57 Amendment procedures generally.
Before taking action on any proposed amendment, supplement or change:
(a)
The board of commissioners shall submit the proposed revision to the planning and zoning commission for its recommendations and report.
(b)
The planning and zoning commission shall make a preliminary report and hold public hearings thereon before submitting its final report.
(c)
Before the tenth day before the hearing date, written notice of each public hearing before the planning and zoning commission on a proposed change in a zoning classification shall be sent to each owner, as indicated by the most recently approved municipal tax roll, of real property within 200 feet of the property on which the change in classification is proposed. The notice may be served by its deposit in the municipality, properly addressed with postage paid, in the United States mail. If the property within 200 feet of the property on which the change is proposed is located in territory annexed to the municipality and is not included on the most recently approved municipal tax roll, the notice shall be given in the manner provided by section 138-58.
(d)
An official sign measuring one and one-half feet by two feet with the words "NOTICE OF REZONING FOR THIS PROPERTY" in letters not less than one and one-half inches in height shall be posted in the front of the property in public view not less than ten days before the date of the public hearing. An official sign measuring four feet by four feet with proportionally larger letters shall be required for commercial and industrial zoning requests. The zoning case number and city web address shall be included on the official sign. Said signs shall not be posted within the 25-foot sight obstruction easement for corner lots or driveways entrances or exits. The planning and zoning commission shall determine the location of official signs for public hearing notice for city initiated rezoning or initial zoning prior to commencement of public notification procedures.
(1966 Code, § 32-20; Ordinance 2005-87, § 1, adopted 10/24/2005; Ordinance 2008-82, § I, adopted 11/24/2008)
§ 138-58 Public hearings.
After receipt of the final report from the planning and zoning commission, a public hearing shall be held by the board of commissioners before adopting any proposed amendment, supplement or change. Before the 15th day before the date of the hearing, notice of the time and place of the hearing must be published in an official newspaper or a newspaper of general circulation in the municipality.
(1966 Code, § 32-21; Ordinance 2008-82, § II, adopted 11/24/2008)
§ 138-59 Rulings.
In all cases in which the board of commissioners deems it feasible and practicable to do so, public hearings provided for in this chapter to be held before the planning and zoning commission and the board of commissioners, respectively, may be held jointly before such commissions, and the board of commissioners shall not take final action until it has received the final report of the planning and zoning commission.
(1966 Code, § 32-22)
§ 138-60 Protests and recommendations for denial.
(a)
In case of a written protest against any change in zoning, signed by the owners of 20 percent or more either of the area of the lots or land included in such proposed change, or of the lots or land immediately adjoining the same and extending 200 feet therefrom, such amendment shall not become effective except by the favorable vote of three-fourths of all the members of the board of commissioners of the city.
(b)
A vote of three-fourths of the members of the board of commissioners, including the mayor, that are present and voting at the properly noticed public hearing, is required to overrule a recommendation of the planning and zoning commission that the proposed amendment, supplement or change be denied.
(c)
At the option of the applicant, his request for a change in zoning shall be heard by the full board of commissioners.
(1966 Code, § 32-23; Ordinance 2016-51, § I, adopted 8/8/2016)
§ 138-61 Administrative costs.
The city planning and zoning commission, with the concurrence and approval of the board of commissioners, shall determine and set forth a fee schedule which is on file in the city secretary's office for the purpose of recovering the administrative costs of processing zoning and subdivision requests and the public hearings called for by this chapter. Such fee shall be paid by the applicant and shall not be designed for restricting an applicant's ability to seek a hearing and/or generate revenue for other than recovery of actual administrative costs incurred by the city.
(1966 Code, § 32-25)