(a) Exceptions to any provisions contained in these sections and relating to utility accommodation shall be justified and recommended for approval by the district engineer and authorized by:
  (1) the Right of Way Division Director using the form entitled "Certification for Utility Accommodation" for all utility facilities occupying the right of way under a utility joint use agreement; or
  (2) the Maintenance Division Director, when a use and occupancy agreement, other than a utility joint use agreement, is received for a proposed utility facility installation on an existing highway.
(b) Requests for exceptions will be considered only where the utility shows that extreme hardship or unusual conditions provide justification and where alternate measures can be prescribed in keeping with the intent of this subchapter. All requests for exceptions must be fully documented with design data and other pertinent information.
(c) For each request for exception the utility must clearly demonstrate that:
  (1) the accommodation will not adversely affect the safety, design, construction, operation, maintenance, or stability of the highway;
  (2) the accommodation will not be constructed or serviced by direct access from the mainlanes of a freeway or connecting ramps;
  (3) the accommodation will not interfere with or impair the present use or future expansion of the highway; and
  (4) any alternative location would be contrary to the public interest, demonstrated by an evaluation of the direct and indirect environmental and economic effects that would result from the disapproval of the proposed use of the right of way.

Source Note: The provisions of this §21.35 adopted to be effective March 17, 2005, 30 TexReg 1455; amended to be effective December 11, 2008, 33 TexReg 10064; amended to be effective October 12, 2014, 39 TexReg 7946