Part I.
Texas Department of Transportation
Chapter 21.
Right of Way
Subchapter I. Regulation of Signs Along Interstate and Primary Highways
The Texas Department of Transportation adopts amendments to §§21.141,
21.142, 21.144-21.154, 21.157-21.160, the repeal of §§21.155 and
21.156, and new §§21.143, 21.155-21.156, 21.161 and 21.162, concerning
the regulation of signs along interstate and primary highways. The amendments
to §§21.142, 21.144, 21.146, 21.148, 21.150, 21.152-21.154, 21.158,
21.160, and new §21.143 are adopted with changes to the proposed text
as published in the December 4, 1998, issue of the
Texas Register
(23 TexReg 12269). The repeal of §§21.155
and 21.156, the amendments to §§21.141, 21.145, 21.147, 21.149,
21.151, 21.157, 21.159, and new §§21.155, 21.156, 21.161, and 21.162
are adopted without changes and will not be reprinted.
EXPLANATION OF ADOPTED AMENDMENTS, REPEALED AND NEW SECTIONS
Transportation Code, Chapter 391, (the "Act") concerning highway beautification
on interstate and primary systems, provides the commission and the department
with the authority to regulate the erection and maintenance of outdoor advertising
signs along interstate and primary systems.
Senate Bill 446, 75th Legislature, 1997, amended Transportation Code, Chapter
391, by adding §391.005 to exempt campaign signs, provided they meet
certain criteria, from regulation.
Title 23, Code of Federal Regulations (CFR), Part 750 requires the state
to adopt certain criteria to continue nonconforming signs, establish exemptions
for on-premise signs, recognize zoning enacted by municipalities, and certify
municipalities to control signs instead of the state.
The amendments to §21.141 change the reference from sections to subchapter.
The amendments to §21.142 revise the definition of "Act" to reflect
that the codification of the statute eliminated the name of the Act. The term
"commercial or industrial activities" is changed to clarify what types of
activities may not be considered to establish an unzoned commercial area.
The term "freeway" has been modified to clarify the point in time when more
restrictive spacing for a freeway should be applied. The amendment provides
that a road becomes a freeway at the point when a construction contract has
been let and the access rights have been obtained. This will decrease the
number of signs permitted in nonconforming locations. A new definition is
added for the term "interchange," defining the point in time when spacing
from an interchange is applied. By using the point in time when a construction
contract has been let, the department can minimize the number of nonconforming
signs. The term "outdoor advertising or sign" is amended to include logos
and symbols. The term "unzoned commercial or industrial area" is amended to
require that business activities must be visible from the main-traveled way
and that two business activities must be adjacent. The definition also provides
what would disqualify the activities from being adjacent. Two activities may
occupy one building as long as there is sufficient separation of the two activities.
The term "zoned commercial or industrial area" was amended to comply with
Title 23 CFR §750.708, by specifically adding a prohibition against the
recognition of spot and strip zoning. A definition for "turning roadway" was
added for clarity. The definition for "normal maintenance" has been deleted
since it is described in §21.l43. Other definitions were amended or added
to conform to federal regulations and to clarify terms used in this subchapter.
This section has also been amended to number the definitions in accordance
with Texas Register style.
New §21.143 complies with the provisions of 23 CFR §750.707.
The section: establishes the conditions applicable to maintaining a nonconforming
sign; describes the actions that may be undertaken without a new permit under
normal maintenance or reasonable repair and maintenance; and establishes criteria
which constitute substantial change to a sign, thus requiring a new permit.
The amendments to §21.144 clarify how measurements of the spacing
of signs from parks, rest areas and scenic areas should be taken; and how
the height of a sign and distance between signs should be measured.
Section 21.145 was amended to delete the requirement that a sign must be
removed within five years of the date it became nonconforming because to do
so would require payment to the sign owner. To reduce fraud, the amendments
also provide that a permit may be canceled if one of the businesses supporting
an unzoned commercial area was solely established to obtain a sign.
The amendments to §21.146 are minor changes that make the section
easier to read.
The amendments to §21.147 revise the directional sign exemption for
farm and ranch signs to add language that the facilities must raise livestock
or grow crops. This will reduce abuse of this exemption. Additionally, an
exemption was added for campaign signs as required by Transportation Code,
§391.005. An exemption for directional signs for certain attractions
and activities was added to reflect the department's policy of not subjecting
directional signs to licensing and permitting requirements in §21.147(a)(10).
Criteria for on-premise signs have been added to comply with 23 CFR §750.709,
requiring the establishment of criteria to determine whether an on-premise
sign qualifies for an exemption.
The amendments to §21.148: reflect the language in Transportation
Code, §544.006, concerning the prohibition of certain signs which interfere
with traffic control devices; clarify that signs in joint use areas with a
railroad or utility company are legally nonconforming if they were in existence
prior to March 3, 1986; and clarify that prohibited signs include signs that
are not otherwise exempt, do not have a permit issued pursuant to §21.150,
and are operated without a license issued pursuant to §21.149.
The amendments to §21.149: clarify that licenses are not transferable;
specify renewal periods; provide that a license will not be eligible for renewal
if the license holder ceases to be authorized to do business in Texas; and
remove the requirements that license renewals be notarized and proof of continuing
bond coverage be provided annually. These changes reduce unnecessary paperwork
associated with license renewals.
Existing §21.149 provides that the department may revoke a license
if a check or money order is not honored, but then must offer a hearing on
the revocation. The amendments consider the license or license renewal void
because if a check is not honored, the applicant should have no standing for
a hearing.
Section 21.149 is further amended to provide: minor changes to make the
subsection easier to read and comply with Texas Register form; and for the
temporary suspension of additional permits or the transfer of existing permits
when the Director of the Right of Way Division receives a bond cancellation
notice. The section: deletes a provision that a license revocation is abated
until the revocation is affirmed by order of the commission, so that the Director
of the Right of Way Division can suspend the issuance of new permits or the
transfer of existing permits; provides the consequence of an expired or revoked
license to permits issued under that license; and provides that notice from
the department of a bond cancellation, revocation, or suspension is presumed
to be received five days after mailing. This presumption may be rebutted.
A presumption of notice will allow the department to proceed when a license
holder has not notified the department of a forwarding address or fails to
check his or her mail.
The amendments to §21.150: require a signature from the landowner
consenting to the erection of a billboard; clarify that the initial permission
is assumed to continue unless withdrawn; and deletes language that provides
that an indication must be included on the permit application that the site
owner has consented to the erection of a sign because the additional permission
is not necessary. The section also clarifies requirements regarding permit
plates and staking a proposed location, which will make it easier for the
department to identify existing and proposed sign sites when reviewing a sign
permit application or conducting an inventory. The section requires permits
to be considered on a first-come, first-serve basis, to standardize handling
of permits. The chart in existing subsection (d)(2) concerning refunds and
prorations is deleted because it is obsolete since all refunds have been made.
The amendments to §21.150 further authorize the Director of the Right
of Way Division to approve a transfer from a lapsed license to a valid license
when legal documents can be provided to show that the sign was sold. This
will eliminate the consequence of losing a sign when the seller of a sign
dies or leaves the country prior to signing a transfer form, but after signing
a bill of sale. The amendments provide: that a permit with an unresolved permit
violation is not eligible for transfer; and a transaction is void if a check
or money order is dishonored upon presentment. Currently, the department may
cancel a permit, with notice and an opportunity for a hearing. If a check
is not honored, the transaction should be void and the applicant should not
be entitled to a hearing. The amendments also provide that a notice of cancellation
from the department is presumed to be received five days after mailing in
order to allow the department to proceed when a license holder has not notified
the department of a forwarding address or fails to check his or her mail.
This presumption may be rebutted. The amendments establish that a permit automatically
expires if it is not renewed, the license expires or is revoked, or the sign
is acquired by the state. In these cases, no cancellation of the permit is
necessary and it is not necessary to provide notice and an opportunity for
a hearing.
The amendments provide: the reasons why a permit may be canceled; and that
a notice may be posted on the sign to provide notice to a sign owner that
the sign has become subject to control under the Act, when the owner of a
sign cannot be identified by information on the sign. As required in §21.150(n),
this posting will resolve the problem of notifying owners that signs on the
National Highway System must be permitted.
Section 21.151 is amended to reflect the reorganization of the department
and to update department titles. The term "geographical jurisdiction" was
changed to "corporate limits." At the time this policy was originally adopted,
municipalities had no authority under the Local Government Code to extend
their sign ordinances into their extraterritorial jurisdiction ("ETJ"). Title
23 CFR §750.706, does not permit a state to accept a municipality's control
for purposes of meeting the requirements of the federal law, in the municipality's
ETJ if there is no zoning in the ETJ. In Texas, state law does not allow a
municipality to adopt a zoning ordinance within its ETJ. The term "geographical
jurisdiction" needed to be replaced to avoid the misconception that a municipality
can control signs in its ETJ, in lieu of state control. When a municipality
controls signs in its ETJ pursuant to a local ordinance, the state's control
under Transportation Code, Chapter 391 does not supersede the municipality's
control. Both entities have jurisdiction.
The amendments establish procedures for a municipality to become certified.
All the municipalities that are certified to control signs pursuant to the
federal program were certified in the early 70's, and recently the department
has received several inquiries for certification from municipalities wishing
to become certified.
The amendments authorize the department to conduct reviews of certified
municipalities for the purpose of ensuring that the minimum requirements of
the federal law for an effective control program are being met. Title 23 CFR
§750.706(c)(4) provides that the state should periodically check to assure
that the local authorities are enforcing their sign ordinance, and 23 CFR
§750.706(c)(5) provides that the state is ultimately responsible for
control in these certified municipalities. A municipality may be decertified
for not enforcing its sign ordinance. At least three municipalities have been
"decertified" since the inception of the Act. The amendments provide a procedure
to follow for decertification.
Section 21.152 is amended to require sign owners to obtain a new permit
to enlarge a sign built smaller than the size shown on the permit.
Section 21.153 was amended to clarify how distances between signs and distances
of the spacing of signs from public parks and the right of way line should
be measured.
New §21.154 prohibits the use of LED or video screens and the use
of intermittent messages. The Federal Highway Administration (FHWA) has recently
determined that changeable message signs do not contravene the terms of federal-state
agreements that do not specifically prohibit the use of signs with flashing,
intermittent, or moving lights. However, according to FHWA, LED and video
screens are inconsistent with these agreements. The agreement with Texas,
entered into in 1972, prohibits flashing or moving lights, but does not preclude
the use of moving parts. The department has determined that further study
is necessary to determine the proper frequency of the change and whether the
sign would constitute an unsafe distraction to drivers.
The use of reflective materials is authorized as long as the reflective
materials do not create the illusion of moving lights or cause an undue distraction
to the traveling public. Neon may be used on sign faces as long as the lights
do not move or flash or create the illusion of moving or flashing lights.
Section 21.155 and §21.156 are simultaneously repealed and replaced
with new §21.155 and §21.156 in a revised and amended form.
New §21.155 provides: the criteria for directional signs contained
in 23 CFR §750.154, to eliminate the need to refer to the federal regulations;
and the department's selection method, criteria, and registration for directional
signs for privately owned activities and attractions. Registration will ensure
that the directional signs qualify for the exemption.
New §21.156 specifies criteria for destruction, abandonment, and discontinuance
of signs in accordance with 23 CFR 750.707(d)(6). The section provides a process
and criteria for the department to follow in determining whether a sign has
sustained substantial damage. The sign may not be rebuilt during the appeal
process and may not be repaired without a new permit. The existing section
had a 50% damage threshold, so that a sign cannot be repaired if it sustains
damage in excess of 50% of the cost of erecting a new sign of the same type
at the same location. The adopted new section has a 60% threshold. This change
will make the section more consistent with the municipal ordinances adopted
by certified municipalities pursuant to Local Government Code, §216.013(e).
If more than one-half of the poles on a multiple-pole sign are broken or damaged
to the point where they cannot be reused, the sign must be discontinued. The
section establishes that a sign: may not display obsolete or no advertising
matter for 365 days; is considered abandoned if the sign has fallen into disrepair,
or become overgrown by trees or other vegetation; and is considered abandoned
when the permit renewal fees have not been paid for a period of six months.
The section provides: the actions that the department would consider when
canceling a permit for abandonment, including that a small temporary sign
nailed to the sign does not constitute advertising; that the payment of property
taxes, the retention of the sign as a balance sheet asset, or other evidence
that the sign is not abandoned will not be considered when establishing whether
the sign permit should be canceled; and the department may issue another permit
in a conforming location when an existing sign has been abandoned at the location.
Minor amendments were made to §21.157 and §21.158 to provide
cross-references and to clarify how measurements would be made.
Amendments to §21.159 clarify that the issuance of a permit or license
does not create a property right.
The amendments to §21.160 prioritize the locations where a sign may
be relocated. The existing section provides that a sign may not be relocated
beyond 3,000 feet under the less restrictive spacing and zoning criteria.
The section allows a sign to be relocated within 50 miles of its original
location under less restrictive criteria. Often a sign cannot be relocated
to the remainder or to another location in the vicinity of the original sign
site, either because of insufficient business activity, spacing problems,
or because of a local ordinance that does not allow for the relocation of
signs. It has become increasingly difficult, due to stricter local sign controls
and fewer conforming locations, to relocate signs that are displaced due to
highway construction. These amendments make it easier to relocate displaced
signs to locations conforming to the minimal requirements set out in the federal-state
agreement. The amendments clarify that relocated signs must be reestablished
with the same configuration and construction as the original signs and provide
a procedure for bisecting signs. The requirement that a written agreement
with a landowner waiving and releasing any claim for damages resulting from
the relocation of the sign was deleted because the department does not obtain
such a waiver of damages from any other type of leasehold owner in the acquisition
process. The amendments provide procedures to amend a permit for a bisection
of a sign due to a right of way acquisition. The amendments also clarify that
the criteria for relocated signs do not have to be followed by certified cities.
New §21.161 establishes the department's policy concerning tree cutting
and violation of access rights for maintenance of signs. It is illegal in
Texas to remove vegetation from the right of way to make a sign more visible
or to maintain a sign from the state's right of way. These activities have
become an increasing problem and may result in cancellation of the permit.
New §21.162 provides an appeal mechanism for permit denials that are
not covered by the department's contested case provisions. Currently there
is not a formal appeal process to challenge the basis for a permit denial
and several sign companies have expressed an interest in such a process.
RESPONSE TO COMMENTS
A public hearing was held on December 15, 1998. Oral comments were received
from Gene Leehan, President, Outdoor Advertising Association of Texas; Arnold
Velez, Director of Public Affairs, Eller Media, Fort Worth; Lee Vela and Michelle
Costa, Eller Media, Houston; and Larry Hopkins, Hopkins Outdoor Advertising.
Written comments were received from Scenic Galveston, Inc. (Scenic Galveston),
Scenic Texas, Inc. (Scenic Texas), Whiteco Outdoor Advertising (Whiteco),
Eller Media Company (Eller), Sign Ad, Inc. (Sign Ad), Hopkins Outdoor (Hopkins)
and Reagan National Advertising, Inc. (Reagan). The written and oral comments
are responded to as follows. The commenters did not indicate whether they
were in favor of or against the proposed rules.
Comment: Sign Ad made a general comment that notice of the proposed changes
was inadequate and that all license holders should have been notified formally.
Response: The department published the proposed changes in the December
4, 1998, issue of the
Texas Register
, and
held a public hearing December 15, 1998 to receive comments. Government Code,
Chapter 2001, provides that publication in the
Texas
Register
is formal notice of changes to a state agency rule.
Comment: Concerning §21.141, Hopkins expressed concerns that the scope
of the subchapter seems to be broader than the title, since the subchapter
encompasses the National Highway System. Whiteco requested clarification on
the meaning of the term "regulated highway."
Response: A primary highway is a component of the primary highway system
and includes the National Highway System. These terms are derived from the
federal statute. The term "regulated highway" is defined to include interstate
and primary highways. Those terms are also defined.
Comment: Concerning §21.142 generally, Hopkins would like the word
"means" inserted as the first word after each defined term. Hopkins would
also like the following definitions added or clarified: continuance, device,
intersection, maintain, maintenance, off premise, on premise, park boundary,
right of way line, and turning roadways. Reagan and Hopkins requested a definition
for the term "adjacent."
Response: The form of the definition section is governed by the Texas Register.
The department has added definitions for "intersection" and "turning roadway"
for clarity. The common meanings for the other terms will be applied in the
context of this subchapter unless otherwise indicated.
Comment: Hopkins expressed concern that the term "permanent building" in
§21.142(2)(C)(i) is not consistent with §21.142(30)(A)(i) where
the term "main building" is used. Also, Hopkins disagrees with allowing trailers
and mobile homes to qualify as a commercial activity.
Response: The department agrees with the comment, therefore the term "main
building" has been omitted and subparagraph (A)(i) has been rewritten for
consistency. In order to prevent possible abuses, the provision that trailers
and mobile homes can qualify as commercial activities has been deleted.
Comment: Eller and Hopkins felt that §21.142(2)(G) in the definition
of "commercial or industrial activities" needed further clarification because
it was unclear whether the entire business operation would have to be located
within 200 feet of the right of way, or only some portion of the operation.
Response: The language has been changed to clarify that some portion of
the building, parking lot, storage or processing area where the commercial
activity is housed has to be within 200 feet of the right of way.
Comment: Concerning §21.142(2)(J), Hopkins protests the use of the
term "employee" in reference to a requirement that an employee must be present
at the activity site, because it could exclude an "owner-operator." Hopkins
also points out that "available to customers" seems to further define commercial
or industrial activities as "retail." Eller expressed concern about defining
the amount of hours occupied and type of services that a business must have
in order to qualify as unzoned commercial.
Response: The department agrees in part with the comments. The word "employee"
was changed to "person" and the requirement that the employee be available
to customers has been deleted. The requirement that a business be open five
days a week or 30 hours a week was already in the existing section. The language
has just been further clarified.
Comment: Eller and Whiteco state that facilities such as campgrounds, golf
courses, stadiums, zoos, and racetracks are commercial in nature and should
not be excluded pursuant to §21.142(2)(L).
Response: The department checked the zoning of the Texas Motor Speedway
and agrees that racetracks and professional sports stadiums are considered
commercial and have deleted them from the list of prohibited activities. Language
has been added to clarify that the parking lots adjacent to the offices and
clubhouses of other recreational facilities would be considered commercial.
The department's intent was to prevent the areas without buildings or parking
lots on golf courses, campgrounds, and wild animal parks from being counted
in the measurement because these undeveloped areas are not commercial in nature.
Comment: Eller protests the addition of §21.142(2)(P), which precludes
the use of cemeteries and churches from qualifying an area as unzoned commercial.
Eller reasons that in many cases, churches have activities that can be considered
commercial, such as warehouse facilities and arena-type seating, and cemeteries
exhibit commercial if not industrial characteristics.
Response: In defining an unzoned commercial area, the commission intended
to allow signs only in areas occupied by activities which are customarily
permitted only in zoned commercial or industrial areas, and to clarify this
category by specifically prohibiting certain types of activities which do
not meet this criteria. Cities with a comprehensive zoning ordinance routinely
allow churches and cemeteries in residential and agricultural zones. Therefore,
this subparagraph has not been changed.
Comment: Concerning §21.142(2)(M), Hopkins suggests that the phrase
"used for residential purposes" be included after the word "condominiums"
so as not to preclude office condominiums.
Response: The department agrees, and the word "residential" was inserted
before the word "condominiums."
Comment: Concerning §21.142(2)(N), Hopkins suggests the insertion
of the word "non-profit" before the word preschools, to allow a for-profit
preschool or trade school to qualify as a commercial or industrial activity.
Eller argues that the provision would prohibit the use of corporate training
campuses. Eller also points out colleges and universities have uses that exhibit
very commercial and industrial uses.
Response: Language has been added to allow trade schools and corporate
training centers to qualify as commercial. Because preschools and schools
are not activities customarily permitted only in areas zoned commercial, they
should not qualify an area as unzoned commercial; however, trade schools and
corporate training centers are customarily permitted in zoned commercial or
industrial areas. Language has been added that would preclude facilities such
as school stadiums from being considered commercial.
Comment: Concerning §21.142(8), Hopkins points out that the definition
of the word "erect" in 23 C.F.R. §750.703 does not contain the word "embed,"
and questions why the word was added.
Response: The term "embed" was a part of the existing definition and not
added under the proposed amendment. The department sees no reason to remove
the word since it means to set in earth, which is consistent with the meaning
of the word "erect" in the context of erecting a sign. The common meaning
of the word would apply in the context of this subchapter.
Comment: Concerning §21.142(9), Hopkins expressed opposition to the
proposed changes to the definition of "freeway" because a portion of a roadway
can be deemed a freeway as it passes through a town.
Response: A roadway can be segmented into freeway portions and non-freeway
portions. This is how the subchapter has been interpreted historically. This
change is designed to clarify the definition, but it is not a change to the
existing interpretation.
Comment: Concerning §21.142(10), Whiteco points out that this is not
the definition of "interchange" used by the American Association of State
Highway and Transportation Officials (AASHTO), and that AASHTO only provides
examples of interchanges. Hopkins proposes to change the definition to "an
intersection or junction of regulated roadways in an unincorporated area involving
one or more grade separations, including the additional area used or needed
for connecting roadways or frontage roads to move traffic from one regulated
roadway to another." An interchange under construction would be considered
an interchange when the construction contract has been let, regardless of
whether it is open to the public.
Response: The reference to the AASHTO definition by Whiteco is unclear.
In a "Policy on Geometric Design of Highways and Streets," dated 1994, AASHTO
defines interchange as "a system of interconnecting roadways in conjunction
with one or more grade separations that provides for the movement of traffic
between two or more roadways or highways on different levels." The language
in this section has been changed to use the AASHTO definition. Mr. Hopkins'
revisions would narrow the definition too much by only classifying interchanges
between regulated freeways as interchanges, which is not consistent with the
common understanding of the term. The spacing requirements in §21.153
have been clarified so that it is clear that spacing from interchanges is
only considered outside city limits.
Comment: Concerning §21.142(11), Hopkins suggests that the department
change the reference to 23 United States Code §103 to §103(e) to
be consistent with the definition of Interstate Highway contained in 23 Code
of Regulations §750.703(d).
Response: The department agrees with the suggestion and the more specific
reference to subsection 103(e) has been added.
Comment: Concerning §21.142(29), Hopkins protests the use of the term
"turning roadways," a term used within the definition of "main-traveled way."
Response: The definition for "main-traveled way" was derived from 23 C.F.R.
§750.102(j) and includes the term turning roadways. For clarity, a definition
has been added for the term "turning roadway."
Comment: Concerning §21.142(15), Hopkins requests that the department
list the roadways on the National Highway System within the section. Mr. Hopkins
comments on some confusion surrounding the designation of Spur 557 in Kaufman
County.
Response: A listing of the roads on the National Highway System would be
extremely voluminous, and while the system is finite, as Mr. Hopkins points
out, it does change as additional roadways are built and/or added to the system.
The National Highway System roadways are contained on maps available from
the Transportation Planning and Programming Division, the Right of Way Division,
or any of the district offices (for roads in that district). The state does
not add highways to the system on its own initiative. The system is developed
in conjunction with Federal Highway Administration and local officials. Spur
557 is not on the National Highway System; however, it was on the Primary
System in 1991, and is a regulated highway.
Comment: Concerning §21.142(16), the definition of nonconforming sign
adds a sign that does not comply with the provisions of a law or rule promulgated
at a later date. Eller requests that the department define who has rulemaking
authority or leave the original wording, "with the provisions of a law."
Response: Transportation Code, §391.032, authorizes the Transportation
Commission to promulgate rules, concerning the display of outdoor advertising.
This authority is contained in the definition of "Act" in §21.142(1).
Comment: Concerning §21.142(17), Hopkins points out that the definition
of "normal maintenance" is not used in the subchapter and suggests changing
the wording to ensure consistency.
Response: The term has been deleted to avoid confusion. Normal or reasonable
repair and maintenance is addressed by new §21.143.
Comment: Concerning §21.142(18), Hopkins suggests changing the definition
"outdoor advertising or sign," by inserting the word "prominently" before
the word "visible," or alternatively, deleting the phrase "visible from" and
inserting the phrase "directed towards."
Response: The definition for "outdoor advertising or sign" and the definition
for "visible" are derived from the federal regulations, 23 CFR §750.703(i)
and (n), respectively. These definitions, as written, are important in the
interpretation of §21.146 relating to Signs Controlled. All signs visible
from the highway and placed within 660 feet of the right of way are regulated.
This control area is extended beyond the 660 feet outside urban areas, if
the sign is visible and was erected for the purpose of having its message
seen from a regulated highway. This control criterion is set forth in 23 CFR
§750.704. Mr. Hopkins' suggestions would be inconsistent with the federal
regulations.
Comment: Concerning §21.142(19), Hopkins points out that the reference
to §391.068 contained in the definition of "permit" is confusing due
to the statutory references contained in the Act.
Response: The definition of permit refers to the section in the Act entitled
"Issuance of Permit." This reference is in the existing section and is not
being changed by these amendments. Further, the commission has no authority
to change the structure of the enabling legislation.
Comment: Concerning §21.142(22), Hopkins suggests that the department
insert the words "rest area" into the definition of public park. Whiteco questions
the phrase "A public park . . . so designated by the department or other governmental
agency." Whiteco presumably questions what entities have the authority to
designate a park.
Response: Because rest areas and public parks are treated differently in
§21.153, regarding Spacing, the definitions cannot be combined. The definition
of "public park" has been modified to clarify that the designation of a park
is made by the entity with jurisdiction over the park.
Comment: Concerning §21.142(23), Hopkins suggests the department add
the phrase "and excluding the roadways covered under Chapter 394 (Relating
to Regulation of Outdoor Signs on Rural Roads)" to the definition of "regulated
highway." Another comment from Whiteco requests clarification of the definition
of the term "regulated highway" and asked whether the primary system includes
only interstate highways.
Response: The department did not add Hopkins' language because the definition
of regulated highway is derived from federal and state statutes. A regulated
highway is a highway either on the interstate highway system or the primary
system. The primary system includes the National Highway System and anything
not on the National Highway System but which was on the old federal aid primary
system in 1991. While these terms may seem confusing, they are derived from
the Federal Highway Beautification Act. When the National Highway System was
adopted, the U.S. Congress wanted the states to continue to control the highways
that they had been regulating, even if they were not included in the National
Highway System. So Congress redefined the primary system for purposes of meeting
the Federal Highway Beautification Act.
Comment: In §21.142(24), Eller asks that the department clarify whether
a non-conforming sign that has been removed may be replaced. By this definition,
must a sign operator who has removed the face of a sign for temporary operational
reasons, surrender the sign permit?
Response: Language has been added to make it clear that copy changes or
removing the face does not constitute removal of the sign structure.
Comment: In §21.142(26), Hopkins requests clarification of the definition
of "right of way," and suggests limiting the definition to rights of way for
regulated highways.
Response: The proposed definition of "right of way" has been deleted to
prevent confusion because it was inconsistent with the usage of the term in
§21.148, Prohibited signs. Signs in any type of public right of way are
intended to be prohibited, whether or not they are on the state highway system.
Comment: Regarding §21.142(26), Hopkins suggests modifying the definition
of "sign face" by adding the word "separation" before the word "borders" in
the third line.
Response: The department agrees and has made this change.
Comment: Concerning §21.142(30)(A), Hopkins suggests moving a phrase,
presumably to make the section clearer.
Response: The adopted amendment does not change the meaning of the subparagraph,
and the department has determined that the phrasing is sufficiently clear.
Comment: Regarding §21.142(30)(A)(i), Hopkins suggests deleting the
word "main" from the requirement that a building of a commercial activity
be within 200 feet of the right of way and clarifying whether it must be the
whole building or only a portion of the building. Mr. Hopkins also suggests
replacing the words "must be" with "is" in two places.
Response: The department agrees in part and the clause has been modified
to make it clearer that only a portion of a permanent building used to qualify
the commercial or industrial activity must be within 200 feet of the right
of way. The "must be" language was retained.
Comment: Concerning §21.142(30)(A)(ii), Hopkins suggests the department
revise the requirement that two businesses cannot be considered adjacent if
there is an undeveloped area over 50 feet wide to a criterion of 100 feet
and make an allowance for professionally landscaped side-yards.
Response: The historical interpretation of this section has been that 50
feet of undeveloped frontage disqualifies an unzoned commercial area. This
is a codification of existing policy, so the department sees no reason to
broaden the area. Professionally landscaped side-yards would not be considered
an undeveloped area.
Comment: Regarding §21.142(30)(A)(iii), Whiteco states that a business
should qualify as a commercial activity if the entire building occupies 300
square feet. Whiteco and Eller state that separate tax identification numbers
should be considered distinctive characteristics for determining whether there
are two activities in an unzoned commercial area. Hopkins suggests minor rephrasing
of the language.
Response: The requirement that each activity occupy 300 square feet has
been in place since 1985. Separate tax identification numbers will be considered
when trying to establish whether two activities occupy one space, as is decor
and other factors. The department does not wish to list everything that would
be considered. Hopkins suggested changes were not made because the department
does not think they are necessary.
Comment: Regarding §21.142(30)(B), Hopkins suggests deleting the first
occurrence of the word "industrial" in the phrase "An unzoned industrial commercial
or industrial area."
Response: This change has been made for clarification.
Comment: Concerning §21.142(30)(B)(ii), Hopkins suggests the department
replace the phrase "principal part of the qualifying activity" with "adjacent
activity."
Response: The language in this subsection is not being amended and Hopkins'
suggestion was not incorporated. The language does not contemplate some portion
of the qualifying activities, such as a parking lot, occupying the other side
of the highway.
Comment: Regarding §21.142(30)(B)(iii), Hopkins suggests repeating
certain language contained in subsection (i) concerning the measurement of
the unzoned area in the subsection, presumably for clarity, rather than referring
to the "area."
Response: The department does not agree with the suggestion since addition
of the language would be redundant.
Comment: Concerning §21.142(30)(B)(iv), Hopkins requests that the
department further clarify that the entire area is to be considered when determining
whether an area is primarily residential rather than the number of residences
in the area versus the number of commercial buildings.
Response: This language is not a change to the existing section and additional
clarification is not necessary.
Comment: Regarding §21.142(31), Hopkins suggests the department add
the language "unless legal on a rural road" to the definition of "visible."
Sign Ad recommends that the definition be deleted.
Response: This definition is derived from 23 CFR §750.703(n). Hopkins
change would inappropriately limit the scope of the department's control area.
The department does not agree with Sign Ad that the definition be deleted.
Comment: Scenic Texas supports the amendments to §21.142, particularly
the amendments to §21.142(32), regarding zoning.
Comment: Whiteco states that zoning should be determined by the city. Hopkins
suggests that the department add the following language, "If a municipality's
sign ordinance allows billboards in an Agricultural Zoning District, then
the rules for an unzoned commercial or industrial area shall apply." Hopkins
suggests the deletion of or placing additional qualifications in subparagraphs
(A), (B) and (D) that outline unacceptable zoning situations for purpose of
enforcing the Act. Hopkins wants the department to recognize billboard overlays
or special use permits, if required by current ordinance.
Response: Title 23 CFR §707.708 addresses the acceptance of zoning
and is clear that certain types of zoning, such as spot zoning or strip zoning
cannot be accepted for the purpose of enforcing the Act. The federal regulations
are clear in only permitting signs in areas zoned commercial or industrial
or in unzoned commercial or industrial areas. If an area has zoning, that
zoning is recognized by the state for purposes of billboard control. If a
municipality establishes an agricultural zone, its commercial or industrial
nature is obviously questionable. Additionally, it would be unduly burdensome
for the state to have to research every city ordinance to establish whether
signs are allowed in agricultural zones. If Hopkins' suggested changes were
incorporated, the federal requirements would not be adequately met. The hypothetical
zoning situations suggested by Hopkins would have to be reviewed on a case-by-case
basis.
Comment: Concerning §21.143(a)(2)(B), Hopkins suggests the department
insert "substantially destroyed beyond repair as described in §21.156(a)(2)"
and delete the word "destroyed."
Response: The department disagrees with the suggested changes since the
proposed language already references §21.156.
Comment: Regarding §21.143(b), Hopkins suggests changing the phrase
"normal or reasonable repair and maintenance" to "reasonable repair and normal
maintenance" in order to more closely match the definition.
Response: To avoid any confusion, the term "normal maintenance" has been
deleted from the Definitions section. The use of the term in §21.143
is clear within the context of that section.
Comment: Concerning §21.143(b)(1) and (b)(4), Hopkins suggests replacing
the word "device" with "sign structure" and replacing "faces" with "sign faces."
Response: The department agrees with the comment and changes were made
for consistency.
Comment: Concerning §21.143(c)(1)(C) and (D), Sign Ad opposes these
sections which prohibit changing a multi-pole structure to a mono-pole and
changing the materials used in the construction of a sign, such as replacing
wood with metal. Sign Ad recommends that the department delete these restrictions,
which prohibit upgrades of nonconforming structures. It argues that upgrades
should be allowed for safety and aesthetic reasons.
Response: Title 23, CFR §750.707(d), clearly establishes that nonconforming
signs may remain as long as they are not substantially changed. The department
considers the replacement of a wooden multipole structure with a metal monopole
to be a substantial change. Under the current federal regulations, this type
of upgrade cannot be allowed.
Comment: Concerning §21.143(c)(1)(E), Hopkins and Reagan suggest the
deletion of subparagraph (E), the stipulation that adding electronic components,
such as a changeable message or rotating slat faces, would constitute a substantial
change to a nonconforming sign and would require a new permit.
Response: The proposed subparagraph, stipulating that the addition of electronic
components to a sign would constitute substantial change to a nonconforming
sign and would consequently require a new permit, has been deleted. This subparagraph
is no longer necessary because the proposal to add trivision technology pursuant
to proposed §21.154(b) has been modified so that rotating faces will
not be allowed. This modification makes the comments from Hopkins and Reagan
moot.
Comment: Concerning §21.143(c)(1)(F), Hopkins suggests replacing the
word "changing" with "increasing" in the context of changing the height of
a nonconforming sign.
Response: The department agrees and for clarity has made this change.
Comment: Concerning §21.143(c)(1)(H), Hopkins suggests replacing the
word "sign" with "sign structure."
Response: The department agrees and for consistency has made this change.
Comment: Relating to §21.144(d), concerning measurements of height,
Sign Ad opposes this revision and recommends that the current height regulation
be maintained. It argues that the measurement should be made from the point
where the sign is actually viewed, rather than perpendicular to the structure.
Sign Ad states this will have a "profound affect on the visibility and related
income stream of many signs." Whiteco and Eller felt that the criterion for
measuring height was unclear and contradictory.
Response: The language has been changed to further clarify this section.
The measurement will be taken at the point perpendicular to the sign from
the grade of the main-traveled way. Certain districts have historically measured
sign height from some viewpoint in front of the sign, depending upon the location
of the last hill, or from 500 feet back, or 1,000 feet back. This approach
is impractical and unsafe for the department inspectors. The department will
now be able to apply the new measurement criteria consistently.
Comment: Relating to §21.144 and §21.153(d), Hopkins suggests
the insertion of a new subsection (e) in §21.144. The new subsection
would provide that spacing between signs performed under §21.153 of this
title (relating to Spacing) shall be measured between points on the regulated
highway right of way perpendicular to the center of the signs, not from the
outer edges of the signs.
Response: The department agrees that this will be easier to measure, and
the change has been made.
Comment: Concerning §21.144(c), Scenic Galveston supports the more
detailed criteria for measuring from parks, but thinks the definition of "park"
should be contained in this section, §21.153(b), and §21.159(b).
Response: The purpose of defining the term is to avoid having to repeat
the entire definition every time the term is used. It is not necessary to
repeat the entire definition each time the term is used.
Comment: Concerning §21.145(a), Scenic Galveston does not want the
department to amend this section to delete language specifying that signs
must be removed five years after an area no longer qualifies as an unzoned
commercial area due to the cessation of a business activity.
Response: If enforced, this provision would constitute an amortization
of a nonconforming billboard. The Federal Highway Administration has determined
that amortization is not an acceptable form of just compensation. For these
reasons, if this provision were enforced, the department would have to pay
just compensation to the sign owner.
Comment: Concerning §21.145(b), Eller and Sign Ad have concerns about
the addition of language to cancel a permit if the department has evidence
that an activity supporting an unzoned commercial or industrial area was created
primarily or exclusively to qualify an area as an unzoned commercial or industrial
area. Eller would like the department to continue the practice of allowing
a sign company to front capital to a business in exchange for a sign lease
and states that this provision could jeopardize their operations. Sign Ad
points out that a sign company has no control over the success or failure
of a business. Sign Ad and Whiteco question the department's ability to enforce
the provision. Sign Ad wishes to delete the clause: "and that no business
has been conducted at the activity site within one year."
Response: In the event a permit is cancelled under this provision, the
permit holder would be entitled to a hearing before the State Office of Administrative
Hearings and both the state and the permit holder would be entitled to present
evidence. The department would not cancel a permit under this provision unless
there was evidence of abuse.
Comment: Relating to §21.146(a), Hopkins wishes to add language to
the effect that the regulation of signs under Chapter 391 always supersedes
regulation under Chapter 394, relating to control of signs on rural roads,
over the entire 660 feet deep unzoned commercial or industrial area.
Response: Hopkins' suggested change is unnecessary. Transportation Code,
§394.003(1) and §21.421(a) provide that a sign which is allowed
under Chapter 391 is exempt from the Rural Road Act.
Comment: Concerning §21.147(b), Hopkins suggests that on-premise sign
criteria should be handled as a definitions.
Response: Due to the length of the section, it would be impractical to
handle the criteria in the definition section.
Comment: Regarding §21.147(b)(1)(B), Whiteco questions whether state
signs in the right of way at each exit fall under the category of off-premise
business signs and asks whether they are regulated as well.
Response: State-owned signs in the right of way are considered official
signs and are exempt from the Act and from this subchapter. The department
regulates the size and placement of official department signs in accordance
with the Texas Manual on Uniform Traffic Control Devices.
Comment: Regarding §21.147(b)(2)(C), Hopkins requests clarification
on how non-conforming on-premise signs will be handled.
Response: The on-premise sign criteria is largely a codification of existing
policy; however, if there are any on-premise signs which meet the previous
criteria but fall short of the adopted criteria, they would be allowed to
remain as an exemption.
Comment: Concerning §21.148(3), Eller requests clarification on the
intent of the section, regarding the prohibition of signs in the right of
way, as projected across railroad right of way. Eller questions the significance
of "March 3, 1986" and whether the provision will enable the department to
collect rent from billboard companies occupying state right of way in the
Katy Freeway Railroad corridor. Sign Ad recommends that the provision be deleted,
or the phrase "or any political subdivision unless a construction contract
has been let" be added. Whiteco questions whether department authorized official
signs are prohibited.
Response: This is not a substantive change to the section which was last
amended on March 3, 1986. The section prohibits permitting new signs on property
used jointly by the department and a railroad. Because the section has not
been changed since March 3, 1986, this amendment clarifies that signs permitted
in joint use property prior to that date might remain as legal non-conforming
structures. The section has nothing to do with the acquisition of railroad
corridor property for highway purposes or allowing signs to remain (with or
without a lease) on department property pending the construction letting.
Sign Ad's proposed language was not incorporated. Department authorized official
signs are authorized by law and are exempt. They are not prohibited and will
not have to be removed.
Comment: As proposed §21.148(4), provided that signs which "attempt
to direct the movement of traffic" would be prohibited. Hopkins and Eller
point out that all signs attempt to direct the movement of traffic, and signs
with messages such as STOP, EXIT NOW or NEXT EXIT should not be prohibited.
Response: The section was intended to prohibit signs in violation of Transportation
Code, §544.006. The proposed language has been changed to a general reference
in paragraph (1) to signs prohibited by Transportation Code §544.006.
Paragraphs (1),(4),(5), and (6) have been deleted from the proposed language
since their substance is now covered in new paragraph (1).
Comment: Hopkins opposes the request for an individual's social security
number in §21.149(a)(1)(C).
Response: The commission is required by Family Code, Chapter 232 to provide
the social security numbers of individual license holders to a Title IV-D
agency. The information is used to revoke or suspend a license for failure
to pay child support.
Comment: Hopkins opposes the requirement in §21.149(a)(2)(A)(iii)(IV)
that both the effective and execution dates of the bond be provided.
Response: No change was made; this is required for accurate record keeping.
The effective date is the definitive date for determining a lapse in bond
coverage.
Comment: Hopkins protests the provision in §21.149(b)(2)(C) that the
department may ask for proof of continuing bond coverage.
Response: This provision replaced previous §21.149(b)(3)(B) which
required that proof of continuing bond coverage be sent in with every renewal.
The replaced provision required a renewal submission to include a certified
power of attorney from the applicant's surety company together with a fully
executed continuation certificate or a copy of the bond. The new provision
is significantly less burdensome for the license holder because the license
holder does not have to provide the bond coverage unless the department asks
for it. The new provision is significantly less burdensome for the department
because it will significantly reduce unnecessary paperwork.
The department has revised the time for suspension of permits in subsection
(d) from the date of notice of bond cancellation to the bond termination date.
This gives the permit holder more time before cancellation since the notice
precedes the actual termination date. The word "permanent" has been added
before the word "suspension" in subsection (e) and (f) for clarification.
Subsection (g) has been revised to allow the license holder to rebut the presumption
that he or she received notice of permanent revocation or permanent suspension.
Comment: Regarding §21.150(b), Hopkins would like to add a requirement
that the inspectors set an appointment with the applicant to meet on certain
sites and review the location. Also, Hopkins does not like the procedure in
the Dallas District where the applicant and the real property owner are notified
of a permit denial at the same time, creating a situation where the property
owner knows of the denial before the applicant.
Response: There are certain circumstances where an unannounced inspection
is necessary, particularly in establishing an unzoned commercial activity.
There are also safety concerns as to the number of people present on the right
of way. Also, an inspector can be more objective without the applicant at
the site. The department will review the procedure of mailing a notice to
the property owner, but it is not necessary to revise this procedure with
a change in the section.
Comment: Concerning §21.150(b)(1)(C), Hopkins suggests that the phrase
"site owner" should be replaced with "real property owner."
Response: The department agrees that the suggestion is more specific, and
this change has been made.
Comment: Regarding §21.150(b)(2) and (3), Hopkins requests the deletion
of the requirement that the application be notarized or delete the requirement
of proof of permission from the property owner. He questions the purpose of
a notary requirement if the applicant has to prove everything that is sworn
to. Whiteco states that the landowner's signature should be adequate if the
permit holder withdraws the application and reapplies for the same site. Eller
supports the amendment requiring a permit holder to provide documentation
that a landowner has granted permission to erect a sign but expresses concern
that the proof would also have to be provided on renewals. Scenic Galveston
questioned how the proposed revisions would affect or negate their ability
as a landowner to withdraw permission for the maintenance of signs on their
property.
Response: As to Hopkins' comments, the department deems both requirements
necessary on an original application. The notary requirements have been dropped
on all renewals. Each application will be required to have the landowner's
signature either on or attached to the permit application. The department's
language that the permission operates for the life of the permit was intended
to mean the life of the permit including any renewals. Language has been added
to further clarify this provision. As to Scenic Galveston's comments, the
revised language provides that a landowner can provide proof to the department
that permission for the occupancy of a sign has been withdrawn and that a
lease has expired or been legally terminated. The department will consider
this documentation and make a determination whether or not to cancel a permit
pursuant to §21.150(i)(7). When a permit is cancelled, the permit holder
is entitled to a hearing on the propriety of the cancellation. If there is
a legal dispute between the property owner and the sign owner, the department
may elect not to cancel the permit until a court determines the issue of whether
the lease has been terminated.
Comment: Concerning §21.150(b)(4), Hopkins requests that the term
"department's jurisdiction" be changed to the "Act" for consistency.
Response: While this was not a proposed change, the change has been made
for consistency. The department also changed the language so that it would
be clear that a permit may only be issued in an unzoned commercial or industrial
area or in a zoned commercial or industrial area.
Comment: Concerning §21.150(b)(6), Hopkins suggests deletion of the
stake requirement because it would influence a sign company's negotiations
with adjacent property owners. Hopkins also points out that others, such as
an adjacent property owner or competitor could remove the stakes, causing
the denial of the application. Whiteco expressed concerns that if a sign should
overhang a building it would be impossible to stake every corner.
Response: Staking or marking a location will reduce the number of improperly
permitted sign locations. It will also reduce the number of signs that overhang
the right of way. It is imperative that sign inspectors know the exact location
of the proposed sign to properly evaluate whether the sign meets all pertinent
spacing requirements. Sabotage has not been a problem in districts requiring
staking. The language has been modified to require the staking of the center-pole
rather than the ends of the face and that the sketch submitted with the application
must reflect the location of the sign faces in relation to the center pole.
Comment: Regarding §21.150(c), Whiteco requests clarification regarding
a second application received by the department while the first application
is pending. It questions whether it can be held or must it be denied immediately.
Response: The second application can be held until a determination is made
on the first application. Language has been added to further clarify this
point.
Comment: Concerning the proposed §21.150(d), Hopkins requests that
the terms "permit holder," "license holder," and "sign owner" be defined.
Response: These terms are used in varous sections. The department has determined
that definitions are not necessary. A permit holder is the holder of a permit,
a license holder the holder of a license and a sign owner the owner of a sign.
Comment: Concerning §21.150(g)(1)(C), Eller questions whether it can
transfer all permits in the state (from Patrick and Universal to Eller) for
a one-time fee of $2,500.
Response: One transaction can cover multiple districts when the transfer
is from one license to another. The transfer from Universal to Eller would
be considered one transaction with a cap of $2,500 and the transfer from Patrick
to Eller would be another transaction with a cap of $2,500.
Comment: Concerning §21.150(i)(7), Whiteco questions the use of the
term "person" in the context of "a person" withdrawing permission for a sign
company to occupy their property. Whiteco requests that the provision be changed
so that the property owner of the site, as listed on the permit application,
or a property owner who has acquired the property by deed be the proper party
to withdraw permission.
Response: "Person" is defined in §121.142 and includes all legal entities.
The subchapter provides that the sign must be located on property "owned by
a person." This has the same effect as the requested change. It is limited
to the property owner.
Comment: In §21.150(i)(8) and (10), Whiteco requests clarification
on how a permit can be canceled based on cessation of activities or vegetation
clearance. Whiteco points out that this should be proved at an administrative
hearing.
Response: In the event a permit is cancelled under either of these provisions,
the permit holder would be entitled to a hearing before the State Office of
Administrative Hearings and both the state and the permit holder would be
entitled to present evidence.
Comment: Concerning §21.150(k), Hopkins protests the requirement that
notice is presumed to be received five days after mailing and requests that
the return receipt on certified mail be required for the notice to be presumed
delivered. Hopkins also requested the department to add a provision that a
permit holder can show that he was out of town or out of the country and that
notice was not received. Whiteco suggested that the notice should be presumed
delivered five days after receipt of mailing. Whiteco suggests that the notice
of cancellation be sent to the same office as the renewals for that site (and
possibly by the district).
Response: The provision was added to solve the problems created by permit
holders refusing to pick up certified mail. Language was added that the recipient
of the notice may present proof that the notice was not delivered within five
days of mailing, in which case the department can extend the time for requesting
a hearing. The Director of the Right of Way Division sends notices of cancellation
to the address of record provided by the license holder. It would be unduly
burdensome for the department to send cancellation notices to multiple unofficial
addresses.
Comment: Regarding §21.151, Eller would like the commission to give
one entity the right to operate in the ETJ, rather than have dual jurisdiction
with the city and the state. Eller also asks whether the provision "allows"
the City of Houston to withdraw its jurisdiction over its ETJ.
Response: Municipalities control signs pursuant to the Local Government
Code, which also allows them to extend their sign control into their extraterritorial
jurisdiction (ETJ). The department's statutory authority is contained in Transportation
Code, Chapter 391, enacted to comply with the Federal Highway Beautification
Act of 1965, 23 U.S.C.A. §131, and with 23 C.F.R. Chapter 750. While
the state may accept a municipality's control inside a city, for purposes
of complying with the federal statutes and regulations, the federal statutes
do not allow the state to accept a municipalities control in the area of the
ETJ, because a municipality cannot zone this area. Additionally, not all cities
are certified to control signs for purposes of meeting the federal requirements,
and in those cities there is an area of joint jurisdiction. The commission
does not have the statutory authority to limit the jurisdiction of a municipality
under the Local Government Code. On the other hand, in order to comply with
the federal regulations, the state cannot accept a municipality's control
in the ETJ, for purposes of meeting the requirements of the federal statute.
Comment: Regarding §21.151(a), Hopkins requests that the term "and
with customary use" be defined in the context of a political subdivision establishing
criteria for size, lighting, and spacing of outdoor advertising signs consistent
with the purposes of the Highway Beautification Act of 1965 be defined.
Response: This term is contained in the federal-state agreement. Therefore,
if there were a question as to the meaning, the department would ask the FHWA
for its interpretation.
Comment: Concerning §21.152(a), Hopkins requests the insertion of
the phrase "sign face" in four places before the words "height" and "length."
Response: The department agrees and for clarification has made these changes.
Comment: Regarding §21.152(b), Hopkins requests that the insertion
of "on the main-traveled way of the regulated highway" at the end of the subsection.
Response: The department agrees and for clarification has made this change.
Comment: Concerning §21.152, Hopkins requests that the insertion of
"face" or "faces" after "sign" in two places.
Response: The department agrees and has made these changes for clarity.
Comment: In proposed §21.152(f), Hopkins, Reagan, Sign Ad, Whiteco,
and Eller protested the requirement that plans for cutouts and extensions
be submitted in advance for approval. All commentors thought that the requirement
would be overly burdensome and impractical.
Response: The department agrees that this requirement would be impractical
and has deleted it.
Comment: Concerning §21.153(c), Hopkins protests a change to subsection
(c) that would require 1,000 feet spacing from intersections, interchanges,
and rest areas on non-freeway primaries and asks that the change not be made.
Hopkins also requests the section be revised so that the department will not
consider interchanges, intersections, and ramps located inside the corporate
limits of a municipality when determining spacing limitations for a sign located
outside the city limits.
Response: The requirement for spacing outside city limits along all regulated
highways was an error. In §21.153(c), the term "regulated highway" has
been changed to "freeway or interstate regulated highway." As to Hopkins'
second request, the department disagrees. Often city limits are extended down
highway right of way for miles, making the ramps, etc., inside the city limits.
The department thinks the sign location should be the governing factor in
spacing from ramps, etc.
Comment: Regarding §21.153(c)(1), Eller questions the spacing requirement
that specifies that signs may not be erected within 1,000 feet of an interchange
or an intersection , and questions the reasoning as to why this would be a
safety concern.
Response: This is not a change to the existing section, although it has
been rewritten for clarity. Spacing from interchanges and intersections is
required by our federal-state agreement. An intersection of frontage roads
and a street crossing under the freeway is usually considered an intersecting
component of a larger diamond interchange. Signs would be prohibited 1,000
feet from both the exit and the entrance ramp and in the area inside the interchange.
Comment: Concerning §21.153(c)(2), Hopkins requests a change from
"pavement widening" to the "widening of the traveled way" so that pavement
markings are considered in the spacing from ramps.
Response: The change has not been made. The term "pavement widening" is
the term used in the federal-state agreement with respect to measurements
from ramps. Pavement markings are not the determining measurement.
Comment: Regarding §21.153(f), Hopkins suggests that 300 feet spacing
inside city limits would better serve the industry instead of 500 feet spacing.
Response: The department disagrees. The federal-state agreement only requires
100 feet spacing, so the department's requirements are already stricter than
the federal requirements. This spacing requirement is not a change.
Comment: Eller requests the reconsideration of the exclusion of LED screens
in §21.154(a)(1).
Response: The department's agreement with the FHWA prohibits the use of
"flashing or intermittent lights." Because LED (light emitting diode) technology
uses small lights, and because the FHWA has issued an opinion letter to another
state that animated displays are unacceptable, the department does not wish
to allow LED until there is further clarification from the FHWA that allowing
this technology would not constitute a violation of the department's federal-state
agreement.
Comment: Regarding §21.154(b), Eller wants the department to reconsider
the requirement that trivision signs complete their rotation in two seconds
and asked that it be given at least four seconds, because the requirement
would cause undue wear on the signs. He also questioned the reasoning behind
the requirement. Whiteco expressed concerns about requiring trivision signs
slats to rotate within two seconds and stay stationary for 10 seconds. Whiteco
also protested the requirement that all the slats must turn in the same direction.
Whiteco stated that a minimum of five seconds is needed for the turn. He said
that many of the signs are already up around the state (presumably in certified
cities and along non-regulated roads) and that it could not comply with the
requirement that all slats must turn in the same direction. Hopkins suggests
the insertion of "or prisms" after the words "rotating slats" so that the
language would read "A sign may have rotating slats or prisms" because the
term is recognized in the industry. Hopkins also wants to add the words "and
all at the same time" at the end of the following sentence: "The slats must
all turn in the same direction and at the same rate of speed." Scenic Texas
strongly opposes allowing trivision signs, stating that it will only make
billboards more intrusive than they already are. It point outs that more and
more Texas cities are prohibiting new billboard construction and it states
that a majority of Texans do not want any more billboards. It states that
trivision technology will in no way benefit the citizens of the state and
will increase stress, clutter, distraction, and visual pollution.
Response: The department has determined that further study is necessary
to assess the effect of trivision technology on the safety of the travelling
public and to study whether the rate of the turn and the stationary period
should be regulated and if so, assess the most appropriate time limits. The
department is also interested in determining whether signs with slats turning
in different directions and at different times would have an effect on driver
safety. The department surveyed other states and discovered that of 25 states
that allow trivision, nine states require the rotation to be completed within
one to two seconds. These states had the opinion that a more instantaneous
change would distract the driver for a shorter period of time, but the department
discovered no definitive studies on the subject. The department contacted
two manufacturers of these signs and found that they could easily be set to
change within two seconds. For all of these reasons, the provision to allow
trivision signs has been deleted from these rules and will be considered at
a later date.
Comment: Regarding §21.154(d)(1), Hopkins suggests that the insertion
of the word "sign" before the word "structure" for clarity.
Response: The department agrees and this change has been made.
Comment: Concerning §21.156(a)(2), Scenic Galveston proposes to retain
the existing provision that if a sign sustains damage of 50% of its replacement
costs, the sign permit would be cancelled, rather than revising the provision
to a 60% criterion.
Response: This change was made to make department rules more consistent
with certified cities implementing the Act through ordinances adopted under
the Local Government Code, Chapter 216.
Comment: Concerning §21.156(b), Whiteco states that the department
should have to prove that the sign is vacant for 365 days and it disagrees
with the section in general. Whiteco questions whether a permit for a double-faced
sign with one face without advertising in excess of 365 days would be cancelled
or whether the permit would be changed to a single face. Scenic Galveston
supports the provision in §21.156(b)(2) that small temporary signs such
as garage sale signs or campaign signs attached to the structure do not constitute
advertising matter that would toll the 365 days.
Response: It is unclear whether the commenters disagree with the entirety
of §21.156, concerning the discontinuance of signs, or the portion of
the section that allows the department to consider a sign abandoned after
it has been vacant for 365 days. If the department cancels a permit for this
reason, a hearing would be offered, and both parties would have an opportunity
to prove their position. Title 23 C.F.R. §750.707(d) requires that states
adopt criteria to define destruction, abandonment, and discontinuance. The
"structure" would have to be without advertising. Advertising on one face
would preclude the department from canceling the permit.
Comment: Concerning §21.158, Hopkins requests that it read: "A sign
may not be erected that exceeds an overall height of 42 1/2 feet . . . from
the highest point of the sign at the grade level of the traveled way from
which the sign is to be viewed. A roof sign having a solid sign face surface
may not at any point exceed 24 feet above the roof level. Open sign faces
on roof signs in which the uniform open area between individual letters or
shapes is not less than 40% of the total gross area of the sign face may be
erected to a height of 40 feet above the roof level. The lowest point of a
projecting roof or wall sign must be a least 14 feet above grade."
Response: The department agrees with the comment and these changes have
been made for clarity.
Comment: Regarding amendments to §21.160(c), Scenic Texas and Scenic
Galveston are strongly opposed to these amendments concerning relocation of
billboards. Scenic Texas states that the department's present relocation policies
are ill-founded and meeting with increased resistance throughout the state.
It states that the department's relocation policy is based upon a questionable
assumption as to what values would be awarded with respect to condemned billboards,
and they think these assumptions should be tested in Texas since they have
been tested with success in so many other states. Scenic Texas points out
that billboard relocations are unwanted in an increasing number of our cities.
The department should be examining how it can pay for billboards, just like
it does for churches, schools, businesses, and other structures in the way
of a highway project. It states that it is not the time to be relaxing the
relocation standards, even going so far as 50 miles from the original location.
Scenic Galveston protests the spacing provisions in §21.160 and points
out that eventually, as more and more signs are relocated, it will create
500 feet spacing, rather than 1,500 feet spacing along major transportation
arteries.
Response: It has become apparent to the department that it is necessary
to find alternate relocation sites largely because of the cities which are
not allowing relocation to the remainder of property left after the right
of way is acquired. This subchapter is stricter than what is required by our
federal-state agreement for new permits. The department is proposing to relocate
signs only to locations conforming to the federal requirements. These changes
are intended to save tax money by decreasing the amount the department would
have to pay to purchase billboards being displaced by highway projects.
Comment: Regarding §21.160(c)(5)(D), Hopkins requests clarification
on sign relocation within the same district.
Response: The department thinks this is sufficiently explained.
Comment: Concerning §21.160(c)(7), Hopkins suggests adding "or industrial"
after the word "commercial." Whiteco wants to change the relocation requirement
so that the relocated sign must meet all the applicable criteria in place
at the time of the original permit of the relocated sign.
Response: Hopkins' suggestion has been incorporated for consistency. Whiteco's
changes were not incorporated. Title 23 CFR §750.707 does not allow the
relocation from a nonconforming location to a conforming location. Further,
it would be difficult to determine exactly what criteria were in place at
the time the original permit was issued, particularly if the sign also had
to meet local ordinance criteria.
Comment: Relating to §21.160(c)(8)(B) and (C)(i) and (ii), Sign Ad
strongly opposes the provisions, concerning spacing from parks, interchanges,
and intersection because it will reduce the number of locations eligible for
sign relocation. Sign Ad recommends the addition to both subsections the provision
"and located on the same side of the highway," so that the spacing would only
be applied if the park or intersection were on the same side of the highway.
Hopkins suggests adding language to apply the spacing requirements from interchanges,
intersections , rest areas, and ramps to signs only if the interchanges, etc.
are outside of incorporated municipalities. Hopkins also wishes to replace
the phrase "pavement widening" with, "the widening of the traveled way," to
allow measurements from pavement marking.
Response: The department modified §21.160(c)(8)(B) to clarify that
parks on both sides of the highway are considered when spacing along a nonfreeway
primary roadway, but that only parks on the side with the relocated sign are
considered when spacing on freeway primaries and interstates. This is consistent
with the new language in §21.153. As to Hopkins comments, spacing from
intersections, interchanges, or rest areas applies to both sides of the highway.
Often city limits are extended down highway right of way for miles, making
the interchanges and intersections inside the city limits. The department
thinks that the sign location should be the governing factor. As to the requested
change concerning pavement widening, "pavement widening" is the term used
in the federal-state agreement. Pavement markings are not the determining
measurement.
Comment: Concerning §21.160(c)(8)(F), Hopkins wants to change the
spacing along nonfreeway primary routes inside city limits from 100 feet to
300 feet.
Response: The 100 feet spacing is the spacing provided in the federal-state
agreement.
Comment: Sign Ad strongly opposes the provisions of §21.160(c)(9)(G),
and (H), and recommends that they be deleted. It maintains that the height
of the structure that is being relocated should not have to be reduced and
that if it is reduced, the relocated sign will command less income. Sign Ad
argues that this will handicap efforts of the state to avoid condemnation
and will result in more eminent domain litigation. Sign Ad also protests the
requirement that the relocated sign has to be constructed with the same number
of poles and of the same type of materials as the existing sign, pointing
out that an upgrade to a metal-monopole will be safer and will look better.
Response: The intent of this section is to allow a sign to be relocated
to a location that is conforming to the lesser federal standards for spacing
and unzoned commercial areas. These locations will, however, be nonconforming
to the state standards for spacing and unzoned commercial areas. While the
department is providing additional locations for signs to be moved, the sign
companies should not be bettered by providing an opportunity to replace nonconforming
signs with metal structures in areas that are nonconforming under the state
requirements. As to height, the sign has to conform to the height required
by the new location. If a sign is moved 50 miles from its original location
and the original location is under an elevated freeway, and if the sign is
relocated along a highway level, the sign should be relocated at a height
appropriate for the highway. Subsection (g) was added to clarify that certified
cities would not have to comply with the department's relocation criteria.
Comment: Concerning §21.160(f)(3), Hopkins suggests adding "with compensation
for reduction in value" at the end of the subsection. Eller expresses concern
that a bisectional taking would not be in lieu of compensation for the portion
of the sign damaged.
Response: This section provides a mechanism to amend the permit to reflect
the changed position or size of the sign, without having to issue a new permit.
A sign owner would still be compensated for any damage to the sign. These
provisions govern only the permitting of a structure, not the payment of compensation.
This option would have to be agreeable to the sign owner.
Comment: Scenic Texas supports §21.161, Vegetation Control.
Comment: Hopkins supports the new appeal process in §21.162.
Comment: Sign Ad commented that the amendments and new sections will increase
the demand on the resources of the department, and therefore there will be
a fiscal implication to state government.
Response: The revisions to this subchapter are primarily a codification
of existing policy. The department anticipates meeting any increased need
with its current resources. Sign Ad's comment did not specifically identify
the amendments that they believe will result in increased cost to the department.
The amendments to the measurement sections were made to clarify existing policy.
Relocation provisions were expanded to allow signs to be relocated with less
restrictive spacing and zoning requirements up to 50 miles from the original
sign location. This expansion of the relocation section should reduce the
number of signs that will have to be purchased by providing more locations
for relocation.
43 TAC §§21.141, 21.142, 21.144-21.154, 21.157-21.160
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation
and, more specifically, Transportation Code, Chapter 391, which authorizes
the commission to adopt rules to regulate the erection or maintenance of signs
along interstate and primary systems.
§21.142.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Act - Transportation Code, Chapter 391, concerning beautification
of a regulated highway.
(2)
Commercial or industrial activities - Those activities
customarily permitted only in zoned commercial or industrial areas except
that none of the following shall be considered commercial or industrial:
(A)
outdoor advertising structures;
(B)
agricultural, forestry, ranching, grazing, farming, and
related activities, including, but not limited to, temporary wayside fresh
produce stands;
(C)
activities not:
(i)
housed in a permanent building or structure;
(ii)
having an indoor restroom, telephone, running water, functioning
electrical connections, and adequate heating; or
(iii)
having permanent flooring other than material such as
dirt, gravel, or sand;
(D)
activities not housed in a permanent building that is visible
from the traffic lanes of the main-traveled way;
(E)
activities conducted in a building primarily used as a
residence;
(F)
railroad right of way;
(G)
activities that do not have a portion of the regularly
used buildings, parking lots, storage or processing areas within 200 feet
from the edge of the right of way;
(H)
activities conducted only seasonally;
(I)
activities conducted in a building having less than 300
square feet of floor space devoted to the activities;
(J)
activities that do not have at least one person who is
at the activity site, performing work, an average of at least 30 hours per
week or at least five days per week;
(K)
activities which have not been open for at least 90 days;
(L)
recreational facilities such as campgrounds, golf courses,
tennis courts, wild animal parks, and zoos, except for the portion of the
activities occupied by permanent buildings which otherwise meet the criteria
in this subsection and parking lots;
(M)
apartment houses or residential condominiums;
(N)
areas used by public or private preschools, secondary schools,
colleges and universities for education or recreation (this does not preclude
trade schools or corporate training campuses);
(O)
quarries or borrow pits, except for any portion of the
activities occupied by permanent buildings which otherwise meet the criteria
in this subsection and parking lots; and
(P)
cemeteries, or churches, synagogues, mosques, or other
places primarily used for worship.
(3)
Commission - The Texas Transportation Commission.
(4)
Conforming sign - A sign which is lawfully in place
and complies with size, lighting, and spacing requirements and any other lawful
regulations pertaining thereto.
(5)
Department - The Texas Department of Transportation.
(6)
Director - The director of the Right of Way Division
of the department.
(7)
District engineer - The chief administrative officer
in charge of a district of the department.
(8)
Erect - To construct, build, raise, assemble, place,
affix, attach, embed, create, paint, draw, or in any other way bring into
being or establish.
(9)
Freeway - A divided highway with frontage roads or
full control of access. A proposed freeway is designated a freeway for the
purposes of this subchapter when the construction contract is awarded, regardless
of whether the main-traveled way is open to the public.
(10)
Interchange - A system of interconnecting roadways
in conjunction with one or more grade separations that provides for the movement
of traffic between two or more roadways or highways on different levels. A
proposed interchange is designated an interchange for the purposes of this
subchapter when the construction contract is awarded, regardless of whether
it is open to the public.
(11)
Intersection - The common area at the junction of
two roadways as defined in Transportation Code, §541.303.
(12)
Interstate highway system - That portion of the national
system of interstate and defense highways located within the State of Texas
which now or hereafter may be so designated officially by the commission and
approved pursuant to 23 United States Code §103.
(13)
License - An outdoor advertising license issued by
the department pursuant to the provisions of Subchapter C of the Act.
(14)
Main-traveled way - The traveled way of a highway
that carries through traffic. In the case of a divided highway, the traveled
way of each of the separate roadways for traffic in opposite directions is
a main-traveled way. It does not include such facilities as frontage roads,
turning roadways, or parking areas.
(15)
National Highway System - That portion of connected
main highways located within the State of Texas which now or hereafter may
be so designated officially by the commission and approved pursuant to 23
United States Code §103.
(16)
Nonconforming sign - A lawfully erected sign that
does not comply with the provisions of a law or rule promulgated at a later
date, or which later fails to comply with a law or rule due to changed conditions.
(17)
Nonprofit sign - A sign erected and maintained by
a nonprofit organization in a municipality or the extraterritorial jurisdiction
of a municipality if the sign advertises or promotes only the municipality
or another political subdivision whose jurisdiction is in whole or in part
concurrent with the municipality.
(18)
Outdoor advertising or sign - An outdoor sign, display,
light, device, figure, painting, drawing, message, plaque, placard, poster,
billboard, logo or symbol, or other thing which is designed, intended, or
used to advertise or inform, if any part of the advertising or information
contents is visible from any place on the main-traveled way of a regulated
highway.
(19)
Permit - The authorization granted for either the
erection and/or maintenance, of an outdoor advertising sign as provided in
the Act, §391.068.
(20)
Person - An individual, association, partnership,
limited partnership, trust, corporation, or other legal entity.
(21)
Primary system or federal-aid primary system - That
portion of connected main highways which were designated by the commission
as the federal-aid primary system in existence on June 1, 1991 and any highway
which is not on that system but which is on the National Highway System.
(22)
Public park -_ A public park, forest, playground,
nature preserve, or scenic area designated and maintained by a political subdivision
or governmental agency.
(23)
Regulated highway - A highway on the interstate highway
system or primary system.
(24)
Removed - The dismantling and removal of a substantial
portion of the parts and materials of a sign or sign structure from the view
of the motoring public. The term shall not include the temporary removal of
a sign face for operational reasons.
(25)
Rest area - An area of public land designated by
the department as a rest area, comfort station, picnic area, or roadside park.
(26)
Sign face - The part of the sign that contains the
message or informative contents and is distinguished from other parts of the
sign and other sign faces by separation borders or decorative trim. It does
not include lighting fixtures, aprons, and catwalks unless they display part
of the message or informative contents of the sign.
(27)
Sign structure - All of the interrelated parts and
materials, such as beams, poles, braces, apron, catwalk, and stringers, that
are used, designed to be used, or are intended to be used to support or display
a sign face.
(28)
Traveled way - That portion of the roadway used for
the movement of vehicles, exclusive of shoulders.
(29)
Turning Roadway - A connecting roadway for traffic
turning between two intersection legs of an interchange.
(30)
Unzoned commercial or industrial area -
(A)
An area along the highway right of way which has not been
zoned under authority of law, which is not predominantly used for residential
purposes, and which is within 800 feet, measured along the edge of the highway
right of way, of, and on the same side of the highway as, the principal part
of at least two adjacent recognized commercial or industrial activities. To
be considered an unzoned commercial or industrial area, the following requirements
must be met.
(i)
A portion of the regularly used buildings, parking lots,
storage or processing areas where each respective business activity is conducted
must be within 200 feet of the highway right of way and the permanent building
where the activity is conducted must be visible from the main-traveled way.
(ii)
To be considered adjacent, there must be no separation
of the regularly used buildings, parking lots, storage or processing areas
of the two activities by vacant lots, undeveloped areas over 50 feet wide,
roads, or streets.
(iii)
Two activities may occupy one building as long as each
has 300 square feet of floor space dedicated to that activity and otherwise
meets the definition of a commercial or industrial activity. There must be
separation of the two activities by a dividing wall, separate ownership, or
other distinctive characteristics. A separate product line offered by one
business will not be considered two activities.
(B)
An unzoned commercial or industrial area is more specifically
identified as follows.
(i)
The area to be considered, based upon the qualifying activities,
is 1,600 feet (800 feet on each side) plus the actual or projected frontage
of the commercial or industrial activities, measured along the highway right
of way by a depth of 660 feet in accordance with §21.144(b) of this title
(relating to Measurements).
(ii)
The area shall be located on the same side of the highway
as the principal part of the qualifying activities.
(iii)
The area must be considered as a whole prior to the application
of the test for predominantly residential.
(iv)
An area shall be considered to be predominantly residential
if more than 50% of the area is being used for residential purposes. Roads
and streets with residential property on both sides shall be considered as
being used for residential purposes. Other roads and streets will be considered
nonresidential.
(31)
Visible - Capable of being seen, whether
legible or not, without visual aid by a person with normal visual acuity.
(32)
Zoned commercial or industrial area - An area designated,
through a comprehensive zoning action, for general commercial or industrial
use by a political subdivision with legal authority to zone. The following
areas are not zoned areas:
(A)
areas that permit limited commercial or industrial activities
incident to other primary land uses;
(B)
areas designated for and created primarily to permit outdoor
advertising structures along a regulated highway;
(C)
unrestricted areas; and
(D)
small parcels or narrow strips of land that cannot be put
to ordinary commercial or industrial use and are designated for a use classification
different from and less restrictive than that of the surrounding area.
§21.144.Measurements.
(a)
The depth of an unzoned commercial or industrial area shall
be measured from the nearest edge of the highway right of way perpendicular
to the centerline of the main-traveled way of the highway.
(b)
In determining the length of an unzoned commercial or industrial
area, all measurements should be from the outer edges of the regularly used
buildings, parking lots, storage, or processing areas of the commercial or
industrial activities and shall be along or parallel to the edge of the pavement
of the highway. If the business activities do not front the highway, the projected
frontage will be measured from the outer edges of the regularly used buildings,
parking lots, storage, or processing areas to a point perpendicular to the
centerline of the main-traveled way. Measurements shall not be made from the
property lines of the activities unless the property lines coincide with the
regularly used buildings, parking lots, storage, or processing areas.
(c)
Measurements performed under §21.153 of this title
(relating to Spacing of Signs) from the boundary of public parks and rest
areas shall be measured along the right of way line from the outer edges of
the park boundary abutting the right of way.
(d)
A sign height measurement performed under §21.158
of this title (relating to Height Restrictions) shall be measured from the
grade level of the centerline of the main-traveled way closest to the sign,
at a point perpendicular to the sign location.
(e)
Spacing between signs performed under §21.153 of this
title (relating to Spacing) shall be measured between points along the right
of way of the regulated highway perpendicular to the center of the signs.
§21.146.Signs Controlled.
(a)
No outdoor advertising sign which is visible from the main-traveled
way of a regulated highway may be erected or maintained along a regulated
highway except in accordance with this subchapter unless the sign was in place
prior to the time the location along such highway first became subject to
control under the highway beautification laws. A permit must be obtained and
renewed annually in order to maintain any sign, including a sign in existence
prior to the time the highway along which it is located became subject to
the Act.
(b)
Unless the sign is exempt under this subchapter, no person
may erect a sign along a regulated highway without a permit in either of the
following areas:
(1)
within 660 feet of the nearest edge of the highway right
of way if the advertising is visible from the main-traveled way of the highway,
or
(2)
more than 660 feet from the nearest edge of the highway
right of way outside an urban area, if the advertising is visible from the
main-traveled way of the highway and was erected for the purpose of having
its message seen from the main-traveled way of a regulated highway.
§21.148.Prohibited Signs.
The following types of outdoor advertising signs shall not be erected
or maintained along, or be visible from, the main-traveled way of a regulated
highway unless otherwise authorized by law:
(1)
signs prohibited by Transportation Code §544.006,
governing the display of unauthorized signs, signals and markings;
(2)
signs that are erected or maintained upon trees or
painted or drawn upon rocks or other natural features;
(3)
signs that are erected or maintained within the right
of way of a public roadway or within what would be the right of way if the
right of way boundary lines were projected across an area of railroad right
of way, utility right of way, or road right of way not owned by the State
or any political subdivision. (However, legally erected and permitted signs
may be maintained as nonconforming signs in areas used jointly by the department
and a railroad or utility company if they were erected prior to March 3, 1986.);
(4)
signs erected or maintained without a permit issued
in accordance with §21.150 of this title (relating to Permits) or operated
without a license issued in accordance with §21.149 of this title (relating
to Licenses), which are not otherwise exempt under §21.147 of this title
(relating to Exempt Signs).
§21.150.Permits.
(a)
Eligibility. Except as provided in subsection (l) of this
section, a permit under this section may only be issued to a person holding
a valid license issued pursuant to §21.149 of this title (relating to
Licenses).
(b)
Application and issuance.
(1)
Except as provided in §21.151 of this title (relating
to Local Control) a person who desires a permit to erect or maintain a sign
along a regulated highway must file an application in a form prescribed by
the department, which shall include, but not be limited to:
(A)
the complete name and address of the applicant;
(B)
the proposed location and description of the sign;
(C)
the complete legal name and address of the designated site
owner;
(D)
verification of the applicant's nonprofit status if the
sign is a nonprofit sign; and
(E)
additional information the department deems necessary.
(2)
No permit may be approved unless the applicant
has obtained written permission from the owner of the designated site. The
department may provide a space on the permit application for this signature
or the applicant may provide a copy of the written lease for the site or a
consent statement in a form prescribed by the department. The signature must
be the signature of the property owner or the owner's duly authorized representative.
The owner's permission operates as permission for the life of the permit,
unless the owner provides a written statement that permission for the maintenance
of the sign has been withdrawn and documentation showing that the lease allowing
the sign has been terminated in accordance with the terms of the lease agreement
or through a court order. If the sign owner disputes the lease termination
in court with the owner, the department will not cancel the permit until a
court order is provided.
(3)
The application must be signed under oath by the sign
owner and filed with the district engineer in whose district the sign is to
be erected or maintained, and shall be accompanied by the prescribed fee or
fees.
(4)
An application will not be approved unless the sign
for which the permit is requested is located in an unzoned commercial or industrial
area or in a zoned commercial or industrial area, and meets all applicable
requirements of the sections under this subchapter, or was lawfully in existence
when the sign became subject to the Act.
(5)
If approved, a copy of the application, endorsed by
the district engineer, or designee, and a Texas sign permit plate will be
issued to the applicant. Not later than 30 days after erection of the permitted
sign, or after the issuance of a permit if the sign is lawfully in existence
when the highway along which it is located becomes subject to control by the
department, the sign owner shall cause the permit plate to be securely attached
to that portion of the sign structure nearest the highway and visible from
the main-traveled way. If the permit plate becomes illegible, the department
may require that a replacement plate be obtained in accordance with subsection
(f) of this section. The plate must be attached and may not be removed from
the sign described in the application.
(6)
The proposed location for a new sign must be identified
by the applicant on the ground by a stake or paint with at least two feet
of the stake visible above the ground. The stake must be set at the proposed
location of the center pole. Staking the site is considered part of the application.
Stakes must not be moved or removed until the application is denied, or if
approved, until the sign has been erected. The sketch submitted with the application
must reflect the location of the center-pole and show the exact location of
the sign faces in relation to the center pole.
(c)
Priority. Permits will be considered on a first-come, first-serve
basis. If an application is returned because of errors or incomplete information,
other applications received for the same or conflicting sites between the
time a denied application is returned to the applicant and the time it is
resubmitted, will be considered before the resubmitted application. A second
application for a conflicting site may be held until a decision is made on
the first application.
(d)
Renewals.
(1)
Subject to the terms and location stated in the permit
application, a permit issued or renewed under this section shall be valid
for a period of one year, provided that the sign is erected and maintained
in accordance with the applicable sections under this subchapter. The permitted
sign must be erected within one year from the date the original permit is
issued in order for a sign permit to be eligible for renewal.
(2)
A permit issued by the department prior to September
6, 1985, must be renewed no later than October 1, of each succeeding year.
(3)
An annual permit issued subsequent to September 5,
1985, must be renewed on or before the anniversary date of the date of issuance.
(4)
If a sign continues to meet all applicable requirements,
a permit holder may renew a permit by filing a written request in a form prescribed
by the department and the prescribed renewal fee at the district office serving
the county where the sign is located.
(e)
Transfer.
(1)
A permit may only be transferred with the written approval
of the district engineer. At the time of the transfer, both the transferor
and the transferee must hold a valid outdoor advertising license issued pursuant
to §21.149 of this title (relating to Licenses), except as provided in
subparagraphs (3)-(5) of this subsection.
(2)
A permit holder who desires to transfer one or more
permits must file a written request in a form prescribed by the department
and the prescribed transfer fee at the district office serving the county
where the sign is located. The transferor and transferee will each be issued
a copy of the approved permit transfer form.
(3)
A permit issued under subsection (l) of this section
may be transferred to a nonprofit organization that does not hold a valid
outdoor advertising license issued under §21.149 of this title (relating
to Licenses) if the permit is transferred for the purpose of maintaining a
nonprofit sign.
(4)
A permit issued under subsection (l) of this section
may be transferred for a purpose other than maintaining a nonprofit sign if
the transferee holds a valid outdoor advertising license at the time of the
transfer.
(5)
The director will approve the transfer of one or more
sign permits from a lapsed outdoor advertising license to a valid outdoor
advertising license, with or without the signature of the transferor, if:
(A)
legal documents showing the sale of the sign are provided;
and
(B)
documents are provided that indicate the transferor is
dead or cannot be located.
(6)
A permit that has an unresolved permit violation,
will not be transferred. An unresolved permit violation means that a permit
cancellation is impending or a cancellation has been abated pursuant to subsection
(k) of this section pending the outcome of a hearing.
(f)
Replacement. In the event a permit plate is lost or stolen,
is missing from the sign structure, or becomes illegible, the sign owner must
submit to the district engineer a request for a replacement plate in a form
prescribed by the department, together with the prescribed replacement plate
fee.
(g)
Fees.
(1)
Except as provided in paragraphs (2) and (3) of this subsection,
for a permit issued pursuant to this section:
(A)
the original fee is $96;
(B)
the annual renewal fee is $40;
(C)
the transfer fee is $25 per permit up to a maximum of $2,500
for a single transaction; and
(D)
the replacement plate fee is $25.
(2)
For a nonprofit sign permit:
(A)
the original fee is $10 for each sign;
(B)
the annual renewal fee is $10 for each sign; and
(C)
the transfer fee is waived for the transfer of a permit
issued under subsection (l) of this section if the permit is transferred under
subsection (e)(3) of this section. Any other permit transfer is subject to
the provisions of paragraph (1) of this subsection.
(3)
The initial permit fee is $50 for a sign lawfully
in existence which becomes subject to the Act.
(4)
A fee prescribed in this subsection is payable by
check, cashier's check, or money order, and is nonrefundable.
(5)
If a check or money order submitted for fees described
in this section is dishonored upon presentment by the department, the permit,
renewal, or transfer will be void from inception.
(h)
Expiration. A permit automatically expires if:
(1)
it is not renewed by the permit holder;
(2)
the license under which it was issued expires or is
revoked by the department pursuant to §21.149 of this title (relating
to Licenses); or
(3)
the sign is acquired by the state.
(i)
Cancellation. The director may cancel a permit if the sign
structure:
(1)
is removed;
(2)
is not maintained in accordance with applicable sections
under this subchapter or the Act;
(3)
is damaged beyond the repair threshold contained in
§21.156 of title (relating to Discontinuance of Signs);
(4)
is abandoned, as determined by §21.156;
(5)
is not built in the location described on the permit
application or in accordance with the description of the structure on the
permit application;
(6)
is built by an applicant who uses false or materially
misleading information on the permit application;
(7)
is located on property owned by a person who withdraws,
in writing, the permission granted pursuant to §21.150(b)(2) of this
title (relating to Permits);
(8)
is located in an area in which the activity has ceased
in accordance with §21.145(b) of this title (relating to Cessation of
Activities);
(9)
is erected, repaired, or maintained in violation of
§21.161 of this title (relating to Destruction of Trees/Violation of
Control of Access);
(10)
has been made more visible by the permit holder clearing
vegetation from the highway right of way in violation of §21.161 of this
title; or
(11)
does not have permit plates properly attached under
§21.150(b) and (f) of this title (relating to Permits).
(j)
Removal. If a permit expires without renewal, is canceled
without reinstatement, or if a sign other than an exempt sign is erected or
maintained without a permit, the owner of the involved sign and sign structure
shall, upon written notification by the district engineer, remove the sign
at no cost to the state.
(k)
Notice and appeal. Upon determination that a permit should
be canceled, the director shall mail by certified mail a notice of cancellation
to the address of the record license holder. Notice shall be presumed to be
received five days after mailing. The recipient of the notice may provide
proof that the notice was not received five days from mailing, in which case,
the director of right of way may extend the time for requesting a hearing.
(1)
The notice shall clearly state:
(A)
the reason for the cancellation;
(B)
the effective date of the cancellation; and
(C)
the right of the permit holder to request an administrative
hearing on the question of the cancellation.
(2)
A request for an administrative hearing under
this subsection must be made in writing to the director within 10 days of
the receipt of the notice of cancellation.
(3)
If timely requested, an administrative hearing shall
be conducted in accordance with §§1.21 et seq. of this title (relating
to Contested Case Procedure), and shall serve to abate the cancellation unless
and until that cancellation is affirmed by order of the commission.
(l)
Nonprofit signs.
(1)
A nonprofit organization may obtain a permit under this
section to erect or maintain a nonprofit sign.
(2)
In order to qualify for a permit issued under this
subsection, a sign must comply with all applicable requirements under this
subchapter from which it is not specifically exempted.
(3)
An application for a permit under this section must
include, in detail, the content of the message to be displayed on the sign.
Prior to changing the message, the permit holder must obtain the approval
of the district engineer in whose district the sign is maintained.
(4)
If at any time the sign ceases to be a nonprofit sign,
the permit will be subject to cancellation pursuant to subsection (i) of this
section.
(5)
If the holder of a permit issued under this subsection
loses its nonprofit status or wishes to advertise or promote something other
than the municipality or political subdivision, an outdoor advertising license
must be obtained pursuant to §21.149 of this title (relating to Licenses),
the permit must be converted to a permit for a sign other than a nonprofit
sign, and the holder must pay the original permit and annual renewal fees
set forth in subsection (g) of this section.
(6)
A nonprofit organization that holds a valid permit
for a nonconforming sign that would otherwise qualify for a permit under this
subsection may convert its permit to one issued under this subsection.
(m)
Conversion of rural road permits and registrations. The
department will convert a registration issued under §21.431 of this title
(relating to Registration of Existing Off-Premise Signs) or a permit issued
under §21.441 of this title (relating to Permit for Erection of Off-Premise
Sign) to a permit under this section if a highway previously regulated in
accordance with Transportation Code, Chapter 394 becomes subject to control
under the Act. A holder of a permit or registration converted under this subsection
will not be required to pay an original permit fee under subsection (g) of
this section; however, the permit must be renewed annually under subsection
(d) of this section, on the date the renewal of the permit or registration
issued under §21.431 or §21.441 would have been due. In the event
a sign owner has prepaid registration fees, the outstanding prepayment will
be credited to the sign owner's annual renewal fee. The department will issue
permit plates to a holder of a permit or a registration converted under this
subsection at no charge. In the event replacement plates are needed after
the initial issuance, fees will be charged in accordance with this section.
(n)
New highway or change in highway designation. Owners of
signs that become subject to the Act because of the construction of a new
highway or the change in designation of an existing highway must apply to
the department for a permit and must obtain an outdoor advertiser's license
pursuant to §21.149 of this title (relating to Licenses) within 30 days
after being notified by the department that the sign has become subject to
the Act. If the owner of the sign cannot be identified from information on
the sign, notice may be given by prominently posting notice on the sign for
a period of 30 days.
§21.152.Size of Off-Premise Outdoor Advertising Signs.
(a)
An off-premise sign face may not exceed 672 square feet,
with a maximum sign face height of 25 feet and a maximum sign face length
of 60 feet, inclusive of border and trim, but excluding the sign structure.
Temporary protrusions, also known as cutouts, may not exceed 20% of the area
indicated on the sign permit. Temporary protrusions may be added to an off-premise
sign, provided that no off-premise sign to which one or more temporary protrusions
or cutouts have been added shall have an area greater than 807 square feet,
with a maximum sign face height of 25 feet and a maximum sign face length
of 60 feet, inclusive of temporary protrusions or cutouts, border, and trim,
but excluding the sign structure.
(b)
The maximum size limitations shall apply to each side of
a sign structure or structures visible to approaching traffic on the main-traveled
way of the regulated highway.
(c)
The area shall be measured by the smallest square, rectangle,
triangle, circle, or combination thereof which will encompass the entire sign
face.
(d)
Sign faces may be placed back-to-back, side-by-side, stacked,
or in "V" type construction with not more than two faces presented in each
direction. The sign structure or structures shall be considered one sign.
Two sign faces facing one direction may be presented as one face by covering
both faces and the area between the faces with an advertisement, as long as
the size limitations of subsection (a) of this section are not exceeded.
(e)
Signs which exceed 336 square feet in area, including cutouts,
may not be stacked or placed side-by-side.
(f)
A sign face may be permanently enlarged by 10% of the size
shown on the permit without a new permit, if the enlargement does not cause
the face to exceed the maximum size limitations set forth in subsection (a)
of this section. If a sign is built with a smaller face than the size shown
on the permit or if the face is reduced in size after it is built, a new permit
will be required to increase the size of the face beyond the allowed 10%.
§21.153.Spacing of Signs.
(a)
Signs may not be located in a manner that creates a safety
hazard, including:
(1)
causing a driver to be unduly distracted in any way;
(2)
obscuring or otherwise interfering with the effectiveness
of an official traffic sign, signal or device, or
(3)
obstructing or interfering with the driver's view
of approaching, merging or intersecting traffic.
(b)
Signs may not be located within 1,500 feet of a public
park that is adjacent to a regulated highway. This prohibition shall apply:
(1)
on either side of the highway on a nonfreeway primary system;
and
(2)
on the side of the highway adjacent to the public
park on an interstate or freeway primary system.
(c)
The following spacing limitations apply to signs that will
be erected outside incorporated municipalities along a freeway or interstate
regulated highway. Signs may not be erected:
(1)
in areas adjacent to or within 1,000 feet of interchanges,
intersections at grade, or rest areas; or
(2)
in areas adjacent to or within 1,000 feet of ramps
or their acceleration and deceleration lanes (Such distances shall be measured
along the highway from the nearest point of beginning or ending of pavement
widening at the exit from, or entrance to, the main-traveled way.)
(d)
Signs may not be erected closer than 1,500 feet apart on
the same side of a regulated highway.
(e)
Signs erected outside of incorporated municipalities along
the nonfreeway primary system may not be closer than 750 feet apart on the
same side of the highway.
(f)
Signs erected in incorporated municipalities along the
nonfreeway primary system may not be closer than 300 feet apart on the same
side of the highway.
(g)
The spacing between signs shall not apply to signs separated
by buildings, natural surroundings, or other obstructions which cause only
one sign located within the specified spacing to be visible at any one time.
(h)
No sign, other than an exempt sign, may be erected within
five feet of any highway right of way line. This distance shall be measured
from the end of the sign face nearest the right of way.
(i)
The spacing rules in this section do not apply to on-premise
or directional or other official signs, as provided in the Act, §391.031(b),
nor shall measurements be made from these signs.
§21.154.Lighting and Movement of Signs.
(a)
Lighting. Signs may be illuminated except for signs that
contain, include, or are illuminated by:
(1)
any flashing, intermittent, or moving light or lights,
including any type of screen using animated or scrolling displays, such as
an LED (light emitting diode) screen or any other type of video display, even
if the message is stationary, except those giving only public service information
such as time, date, temperature, weather, or similar information;
(2)
lights that are:
(A)
not effectively shielded so as to prevent beams or rays
of light from being directed at any portion of the traveled ways of a regulated
highway; and
(B)
of such intensity or brilliance as to cause glare or vision
impairment of the driver of any motor vehicle, or which otherwise interfere
with any driver's operation of a motor vehicle; and
(3)
lights that interfere with the effectiveness
of, or obscure an official traffic sign, device, or signal.
(b)
Moving parts. Signs with intermittent messages are prohibited,
including tri-vision signs with rotating slat messages. A cutout on a sign
may be animated if it:
(1)
is not lighted or enhanced by reflective material so as
to create the illusion of flashing or moving lights; or
(2)
does not otherwise create a safety hazard to the traveling
public.
(c)
Reflective materials. Reflective paint and reflective disks
may be used on a sign face unless they are determined by the department to:
(1)
create the illusion of flashing or moving lights; or
(2)
cause an undue distraction to the traveling public.
(d)
Non-flashing neon lights may be used on sign faces, unless:
(1)
the sign permit specifies an unilluminated sign structure;
or
(2)
the lights are determined by the department to cause
an undue distraction to the traveling public.
§21.158.Height Restrictions.
A sign may not be erected that exceeds an overall height of 42 1/2
feet, measured in accordance with §21.144 of this title (relating to
Measurements), from the highest point of the sign to the grade level of the
centerline of the main-traveled way closest to the sign, at a point perpendicular
to the sign location. A roof sign having a solid sign face surface may not
at any point exceed 24 feet above the roof level. Open sign faces on roof
signs in which the uniform open area between individual letter or shapes is
not less than 40% of the total gross area of the sign face may be erected
to a height of 40 feet above the roof level. The lowest point of a projecting
roof or wall sign must be at least 14 feet above grade.
§21.160.Relocation.
(a)
Purpose. This section provides for the relocation of certain
signs along regulated highways within the State of Texas that would otherwise
be precluded under this subchapter. All requirements under this subchapter
are to be complied with to the extent that they are not in conflict with the
provisions of this section.
(b)
Permit. When a sign within the proposed highway right of
way is to be relocated to accommodate a regulated highway project, the district
engineer of the department within whose jurisdiction the sign is located may
issue a permit under the conditions set forth in subsections (c) and (d) of
this section.
(c)
Requirements.
(1)
A new sign permit application shall be submitted but will
not require payment of a permit fee.
(2)
Sign relocation shall be in accordance with all local
codes, ordinances, and applicable laws.
(3)
The district engineer shall initially determine that
the permit is necessary to avoid excessive project costs and/or a delay in
the completion of the project.
(4)
The existing sign to be relocated must be an off-premise
sign legally erected and maintained.
(5)
The sign must be situated after its relocation according
to the following priority:
(A)
upon the remainder of the same tract or parcel of land
upon which it was situated before its relocation, if any;
(B)
if there is no remainder or if the remainder is not of
sufficient size or suitable configuration for the relocation of the sign,
then upon the property abutting the proposed highway right of way at the original
sign location or upon property abutting the insufficient remainder, if available;
(C)
on property adjacent to the locations named in subparagraphs
(A) or (B) of this paragraph;
(D)
to another location within 50 miles of the original sign
location, within the same department-designated district; or
(E)
to another location within 50 miles of the original sign
location, within another district of the department, with the approval of
the district engineer where the sign is to be relocated.
(6)
If possible, the sign is to be placed in the
same relative position as to line of sight.
(7)
The relocated sign must be within a zoned commercial
or industrial area or an unzoned commercial or industrial area, except that
an unzoned commercial or industrial area may include only one recognized commercial
or industrial activity.
(8)
The relocated sign location must meet the following
spacing criteria.
(A)
The sign may not be placed where it is likely to cause
a driver to be unduly distracted in any way or where it will obscure or otherwise
interfere with the effectiveness of an official traffic sign, signal, or device,
or obstruct or interfere with the driver's view of approaching, merging, or
intersecting traffic, whether the intersection be of two or more highways
or the intersection of a highway with a railroad.
(B)
The sign may not be placed within 500 feet of a public
park that is adjacent to a regulated highway. This prohibition shall apply:
(i)
on either side of the highway on a nonfreeway primary system;
and
(ii)
on the side of the highway adjacent to the public park
on an interstate or freeway primary system.
(C)
If the sign is to be placed outside an incorporated municipality
along a regulated highway, the sign may not be located in areas adjacent to
or within 500 feet of:
(i)
interchanges, intersections at grade and rest areas; or
(ii)
ramps, their acceleration and deceleration lanes (Such
distances shall be measured along the highway from the nearest point of beginning
or ending of pavement widening at the exit from, or entrance to, the main-traveled
way.)
(D)
The sign may not be erected along the interstate and freeway
primary systems closer than 500 feet apart on the same side of the highway.
(E)
The sign may not be erected along the nonfreeway primary
system located outside of municipalities closer than 300 feet apart on the
same side of the highway.
(F)
The sign may not be erected along the nonfreeway primary
system in municipalities closer than 100 feet apart on the same side of the
highway.
(G)
The sign may not be erected within five feet of any highway
right of way line.
(9)
The size, configuration, and construction of
the relocated sign must conform to the following provisions.
(A)
The maximum area for any one sign face shall be 1,200 square
feet, with a maximum height of 25 feet and a maximum length of 60 feet.
(B)
The maximum size limitations shall apply to each sign face
visible to approaching traffic.
(C)
The area shall be measured by the smallest square, rectangle,
triangle, circle, or combination thereof which will encompass the entire sign.
(D)
Sign faces may be placed back-to-back, side-by-side, stacked,
or in "V" type construction with not more than two displays to each facing.
The sign structure and faces shall be considered one sign.
(E)
A sign face that exceeds 350 square feet in area may not
be stacked or placed side-by-side.
(F)
In no event shall the size of the sign face, the number
of sign faces, or lighting, if any, of the relocated sign exceed the size,
number of faces, or lighting, if any, of the existing sign.
(G)
The relocated sign will be constructed with the same number
of poles and of the same type of materials as the existing sign.
(H)
The relocated sign must not exceed the maximum height set
forth in §21.158 of this title (relating to Height Restrictions).
(10)
Except in accordance with subsection (g), the
sign replacement site is to be approved by the district engineer or his designee
prior to the removal of the existing sign. A permit may be issued pursuant
to this section if a sign is designated by the owner as personal property
and the sign owner receives relocation benefits, or if the sign is designated
by the owner as realty, valued and purchased according to the department's
sign valuation schedules, and retained by the sign owner. A permit may not
be issued under this section to relocate a sign purchased through an eminent
domain proceeding. Relocation benefits will be paid in accordance with Subchapter
G of this chapter.
(11)
The spacing requirements as provided in paragraph
(8) of this subsection do not apply to:
(A)
signs separated by buildings, natural surroundings, or
other obstructions which cause only one sign located within the specified
spacing to be visible at any one time; and
(B)
on-premise or directional or official signs, as cited in
Transportation Code, §391.031(b), nor shall measurements be made from
these signs.
(d)
Cessation of activities. When a commercial or industrial
activity ceases and a sign other than an exempt sign is no longer located
within 800 feet of at least one recognized commercial or industrial activity
located on the same side of the highway, the sign will be considered nonconforming.
(e)
Waiver of damages. The sign owner must enter into a written
agreement with the acquiring agency waiving and releasing any claim for damages
against the acquiring agency and the state for any temporary or permanent
taking of the sign in consideration of the payment by the acquiring agency
of a mutually agreed specified amount of money calculated to cover the cost
to the sign owner of the relocation of the sign.
(f)
Bisection. An existing permit may be amended by the district
office (serving the county where the sign is located) to authorize:
(1)
a monopole sign face overhanging the proposed right of
way to be shifted to the remainder;
(2)
a multipole structure located partially in the proposed
right of way to have the poles in the right of way moved to the remainder
and the face shifted to the relocated poles; or
(3)
the sign to be bisected and the face size reduced.
(g)
Relocation Within a Certified City. If a displaced sign
is subject to the jurisdiction of a municipality certified to control outdoor
advertising pursuant to §21.151 of this title (relating to Local Control),
and the sign will be relocated within that municipality, permission to relocate
the sign must be obtained only from the certified municipality, in accordance
with the municipality's sign and zoning ordinances. A permit from the municipality
will be required in order to receive relocation benefits from the department.
A separate permit from the department is not required and the specific requirements
for a relocation permit contained in subsection(c) need not be met.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May
3, 1999.
TRD-9902578
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: May 23, 1999
Proposal publication date: December 4, 1998
For further information, please call: (512) 463-8630
43 TAC §§21.143, 21.155, 21.156, 21.161, 21.162
STATUTORY AUTHORITY
The new sections are adopted under Transportation Code, §201.101,
which provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation
and, more specifically, Transportation Code, Chapter 391, which authorizes
the commission to adopt rules to regulate the erection or maintenance of signs
along interstate and primary systems.
§21.143.Maintenance and Continuance.
(a)
Continuance of nonconforming signs. In order for a nonconforming
sign structure to be maintained and continued:
(1)
the sign structure must:
(A)
have existed at the time the conditions changed to make
the sign nonconforming;
(B)
have been lawful on the date it became subject to control
by the department; and
(C)
remain substantially the same as it was on the date it
became subject to the department's control;
(2)
the permit holder's sign:
(A)
may not be relocated even if the sign is sold, leased,
or otherwise transferred, without affecting its status, unless the relocation
is a result of a right of way acquisition requiring relocation to a conforming
area pursuant to §21.160 of this title (relating to Relocation);
(B)
may not be destroyed, abandoned, or discontinued under
§21.156 of this title (relating to Discontinuance of Signs); and
(C)
may not be removed for any reason, including repair.
(b)
Normal or reasonable repair and maintenance. Subject to
the limitations in subsection (c) of this section, the following are considered
to be normal or reasonable maintenance activities that do not need a new permit:
(1)
replacement of nuts and bolts; nailing, riveting or welding;
cleaning and painting; and manipulation to level or plumb the sign structure;
(2)
replacement of parts, as long as the basic design
or structure of the sign is not altered and materials of the same type are
used;
(3)
replacement of poles, as long as no more than one-half
of the poles are replaced in any 12 month period; and
(4)
changing the advertising message, including changing
the sign face, as long as similar materials are used to replace the sign face.
(c)
Substantial change.
(1)
Substantial changes that require a new permit are:
(A)
adding lights to an unilluminated sign or adding more intense
lighting to an illuminated sign whether or not the lights are attached to
the sign structure;
(B)
changing the size of the sign beyond what is allowed pursuant
to §21.152 of this title (relating to Size of Off-Premise Outdoor Advertising
Signs);
(C)
changing the number of poles in the sign structure, unless
the number of poles in a multiple pole structure is reduced to accommodate
a reduction in the size of the original sign, provided that the original sign
is not removed and replaced with another sign;
(D)
changing the materials used in the construction of the
sign, such as replacing wooden materials with metal materials;
(E)
adding faces or changing the sign configuration, such as
changing from a "V" configuration to a stacked configuration;
(F)
increasing the height of the sign from the height designated
on the original permit;
(G)
moving the sign structure or sign face in any way unless
the movement is made in accordance with §21.160 of this title (relating
to Relocation);
(H)
replacing more than one-half of the poles in a multiple
pole sign structure in any 12-month period; or
(I)
making repairs that exceed 60% of the cost to erect a new
sign of the same type at the same location.
(2)
A new permit will not be issued for a nonconforming
sign.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the Secretary of State on May
3, 1999.
TRD-9902579
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: May 23, 1999
Proposal publication date: December 4, 1998
For further information, please call: (512) 463-8630
43 TAC §21.155, §21.156
STATUTORY AUTHORITY
The repeals are adopted under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation
and, more specifically, Transportation Code, Chapter 391, which authorizes
the commission to adopt rules to regulate the erection or maintenance of signs
along interstate and primary systems.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May
3, 1999.
TRD-9902580
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: May 23, 1999
Proposal publication date: December 4, 1998
For further information, please call: (512) 463-8630
The Texas Department of Transportation adopts amendments to §23.2,
concerning definitions, and new §23.14, concerning display and distribution
of travel literature in the Texas Travel Information Centers. The amendments
and new section are adopted without changes to the text as proposed in the
February 19, 1999, issue of the
Texas Register
(24 TexReg 1147), and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS AND NEW SECTION
Texas Civil Statutes, Article 6144e, Section 3, directs the department
to maintain and operate Texas Travel Information Centers at the principal
gateways to Texas for the purpose of providing road information, travel guidance,
and various descriptive materials, pamphlets, and booklets designed to furnish
aid and assistance to the traveling public and stimulate travel to and within
Texas.
The amendments to §23.2 number the definitions to conform with Texas
Register form requirements and also provide new definitions for terms and
words used in new §23.14.
New §23.14 provides for the department to accept, to display, and
to distribute travel literature and other promotional items in the travel
information centers. It allows the department to accept proposals for the
use of promotional graphics, photographs, icons, and other promotional items
for display. It allows for a fair and equitable way to distribute literature
and to prevent preferential treatment or conflicts of interest. The section
identifies items to be sold at the travel information centers. It also allows
for non-departmental use of the travel information centers for on-site promotions,
and provides the department with methods for maintaining the quality and focus
of travel literature and on-site promotions.
COMMENTS
No comments were received on the proposed amendments or new section.
Subchapter A. General Provisions
43 TAC §23.2
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to promulgate
rules for the conduct of the work of the Texas Department of Transportation,
and Texas Civil Statutes, Article 6144e, which provides the Texas Department
of Transportation with the authority to operate Texas Travel Information Centers.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May
3, 1999.
TRD-9902581
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: May 23, 1999
Proposal publication date: February 19, 1999
For further information, please call: (512) 463-8630
Subchapter I. Control of Outdoor Advertising Signs
Chapter 23.
Travel Information
Subchapter B. Travel Information