(a) All matters relating to the leasing of federal-aid highway right of way are subject to the approval of the Federal Highway Administration.
(b) The use of leased right of way beneath the established gradeline of a highway shall provide sufficient vertical and horizontal clearances for the construction, operation, maintenance, ventilation, and safety of highway facilities.
(c) The use of leased highway right of way above the established gradeline of the highway shall provide for vertical and horizontal clearances.
(d) Piers, columns, or any other portion of any improvements to be constructed on the leased right of way shall not be erected in a location that will interfere with the visibility or reduce sight distance or in any other way interfere with the safety and free flow of traffic or level of service on highway facilities.
(e) The structural supports for any improvements to be constructed on leased right of way shall be located to clear all horizontal and vertical dimensions specified by design standards of the department.
(f) The use of leased right of way shall not result in either highway or nonhighway users being unduly exposed to hazardous conditions.
(g) Appropriate safety precautions and features necessary to minimize the possibility of injury to users of either a highway facility or leased right of way shall be provided. All structures constructed above highway facilities shall include adequate enclosure to prevent people and objects from falling. Improvements on leased right of way will not be approved for construction over or under the highway facilities, unless the plans contain adequate provisions, acceptable to the department, for evacuation of the structures or facilities in case of a major accident endangering occupants.
(h) Improvements constructed on leased assets shall be fire resistant in accordance with the provisions of the local applicable building codes. The leased highway asset shall not be used for any purpose or occupation which is deemed by the department to be a hazard to highway or nonhighway users. In cases where the department questions the acceptability of the existing local applicable building codes, conformance with a nationally accepted model building code, or any other code acceptable to the department may be required.
(i) Structures built over highway right of way shall occupy no more length of the highway than prescribed by the department.
(j) The design, occupancy, and use of any structure over or under a highway facility shall be such that the use, safety, appearance, and the enjoyment of the highway will not be adversely affected by fumes, vapors, odors, drippings, droppings, or discharges of any kind from the structure.
(k) All signs, displays, or devices to be located or maintained by a lessee must have prior written approval by the district engineer and shall be restricted to those indicating ownership and type of on-premise activities.
(l) Construction of any structure above or below a highway shall not require any temporary or permanent change in alignment or profile of an existing highway without prior written approval by the department.
(m) When the department is of the opinion that the proposed use of leased right of way requires changes in or additions to existing highway facilities for the proper operation and maintenance of the facilities, the changes or additions shall be provided without cost to the department.
(n) Improvements on leased right of way shall be designed and constructed in a manner that will permit access to highway facilities for the purpose of inspection, maintenance, and reconstruction when necessary.
(o) Persons desiring to lease highway assets may be required to furnish an attorney's title opinion establishing to the department's satisfaction that the lease will be consistent with property rights owned by others.
(p) Persons desiring to lease highway assets shall furnish at their own expense all engineering, appraisal, and other reports, designs, and findings requested by the department.

Source Note: The provisions of this §21.605 adopted to be effective August 15, 2002, 27 TexReg 7177