(a) Purpose. Transportation Code, §392.0325, authorizes a person to submit to the department a request to maintain certain signs that encroach on state highway right-of-way. This section prescribes the policies and procedures by which a person may obtain approval.
(b) Definitions. The following words and terms, when used in this section shall have the following meanings, unless the context clearly indicates otherwise.
  (1) Sign - An awning or sign that will:
    (A) encroach on state highway right-of-way;
    (B) be attached to a building located on property other than state highway right-of-way;
    (C) refer to a commercial activity or business located in the building; and
    (D) either:
      (i) consist solely of the name of the establishment;
      (ii) identify the establishment's principal product or services; or
      (iii) advertises the sale or lease of the property on which the sign is located.
  (2) Director - The chief administrative officer in charge of the Maintenance Division of the department.
(c) Request.
  (1) A request for approval under this section must be submitted to the appropriate department district office. The request shall be on a form prescribed by the department and shall at a minimum include:
    (A) the name, address, and telephone number of the person submitting the request;
    (B) the proposed location of the sign (including distance from the pavement and mounting height);
    (C) the proposed text, background color, and legend color for the sign;
    (D) the size and composition of the sign (including height, width, thickness, and sign material);
    (E) the proposed method of support of the sign (dimension and material);
    (F) detailed plans for the installation and maintenance of the sign;
    (G) a traffic control plan that incorporates the requirements contained in the Texas Manual on Uniform Traffic Control Devices, if it will be necessary to use state highway right-of-way to install or maintain the sign; and
    (H) if applicable, a brief statement about the historic significance of the sign and of the building to which the sign is attached.
  (2) The district may require additional information determined necessary for the department to properly evaluate the request.
  (3) All costs necessary to collect information required under this subsection are the sole responsibility of the requestor.
(d) Approval.
  (1) Subject to the provisions of paragraph (2) of this subsection, the director will approve a request submitted under subsection (c) of this section if the director:
    (A) determines that the sign will not constitute a safety hazard;
    (B) determines that the sign will not interfere with the construction, reconstruction, operation, or maintenance of the highway facility; and
    (C) obtains the approval of the Federal Highway Administration, if approval is required under federal law.
  (2) The director will not approve a request if the sign:
    (A) is attached in any manner to a structure on the right-of-way;
    (B) encroaches into the clear zone as defined by the Texas Manual on Uniform Traffic Control Devices;
    (C) encroaches on right-of-way that is scheduled for future construction or rehabilitation in the department's Unified Transportation Program;
    (D) has utilities located above or below the proposed sign;
    (E) will distract drivers from direction or other official signs authorized by law; or
    (F) will unduly distract the traveling public.
  (3) The director will take into account the historic significance of the building and the sign that is attached to and is a contributing feature of the building.
(e) Agreement. If the director approves a request under subsection (d) of this section, the requestor must enter into an agreement with the department. If the requestor is not the owner of the building to which the sign will be attached, the building owner must also be a party to the agreement. The agreement will include:
  (1) any additional terms and conditions deemed necessary by the director to protect the safety of the traveling public;
  (2) a statement that the requestor and owner shall indemnify and save harmless the state, its officers, employees, agents, and contractors from claims arising from or connected with the requestor's use of the right-of-way under the agreement; and
  (3) a statement that the requestor and owner shall be responsible for the removal or relocation of the sign, if the sign must be relocated or removed due to improvements to the highway facility.
(f) Violation. If a person maintains a sign in violation of the agreement or a provision of this section, the department will consider the sign to be an illegal encroachment subject to enforcement and removal under Transportation Code, Chapter 392, Subchapter B.
(g) Disapproval. If the director denies a request, the director will provide written notice describing the basis for the determination.
(h) Appeal. A person denied approval under this section may file an appeal with the executive director or the director's designee not below the level of assistant executive director. The decision of the executive director or the director's designee is final.

Source Note: The provisions of this §22.16 adopted to be effective December 12, 1999, 24 TexReg 10916; amended to be effective July 23, 2000, 25 TexReg 6813