TITLE 43. TRANSPORTATION

PART 1. TEXAS DEPARTMENT OF TRANSPORTATION

CHAPTER 21. RIGHT OF WAY

SUBCHAPTER I. REGULATION OF SIGNS ALONG INTERSTATE AND PRIMARY HIGHWAYS

The Texas Department of Transportation (department) adopts the repeal of §§21.146 - 21.149, 21.151, 21.165, 21.194, 21.196, and §§21.251 - 21.260; amendments to §§21.141 - 21.145, 21.150, 21.152 - 21.156, 21.158 - 21.164, 21.166 - 21.182, 21.184 - 21.193, 21.195, 21.197 - 21.204; and new §21.205 and §21.206, all concerning regulation of signs along Interstate and primary highways. The repeal of §§21.146 - 21.149, 21.151, 21.165, 21.194, 21.196, and §§21.251 - 21.260 is adopted without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4770). Amendments to §§21.141 - 21.145, 21.150, 21.152 - 21.156, 21.158 - 21.164, 21.166 - 21.182, 21.184 - 21.193, 21.195, 21.197 - 21.204; and new §21.205 and §21.206 are adopted with changes to the proposed text as published in the September 15, 2017 issue of the Texas Register (42 TexReg 4770).

EXPLANATION OF PROPOSED REPEALS, AMENDMENTS, AND NEW SECTIONS

The Texas statutes regulating outdoor advertising were ruled unconstitutional by the Third Court of Appeals in AusPro v. TxDOT, 506 S.W.3d 688 (2016) (Tex.App.-ustin 2016, pet. filed). The court held that Texas Transportation Code, Chapter 391, Subchapters B and C were unconstitutional because the definition of "sign" was over inclusive, making it impossible for the court to determine which provisions applied to commercial speech and which applied to noncommercial speech. This decision is on appeal to the Texas Supreme Court.

The Texas Legislature passed Senate Bill No. 2006, 85th Legislature, Regular Session, 2017, to address the decision of AusPro. The bill removes the unconstitutional issue from the statute by replacing outdoor advertising with commercial sign. The statute defines commercial sign to mean a sign that is intended to be leased, or for which payment of any type is intended to be received. This new definition makes it clear that the regulations only affect commercial speech and not a person's First Amendment right of freedom of speech. This statutory change addresses the court's decision by eliminating the need for a review of the content of the sign to make the determination of whether the sign is regulated. The new provisions require the department to regulate commercial signs in a content neutral manner. These statutory changes required similar changes to the department's rules. Throughout the rules, the terms "outdoor advertising" and "sign" have been replaced with "commercial sign" to correspond with the statutory change.

Senate Bill No. 312, 85th Legislature, Regular Session, 2017 amended §391.038, to legalize the height of all signs as they existed on March 1, 2017, but not to exceed 85 feet, and allows those signs to be maintained at that height without the need of an amended permit from the department; however, city ordinances may still require formal amendment of a city permit. This change to the height restriction required the department to take a look at the current maximum height requirement to determine how to address the discrepancy between signs erected in violation of the current rules, those that had complied with the maximum height and those that will be built in the future.

In addition, these rules include changes to address new department procedures, including the new online application process, and merge the two divisions of Chapter 21 (Division 1, Signs, and Division 2, Electronic Signs) to eliminate repetition and confusion. The word "division" has been replaced with "subchapter" throughout the amended rules to reflect the merger of the divisions.

Almost every rule regarding the Highway Beautification program has been amended to address either the statutory changes, the new streamlined procedures, or the merging of the rules on electronic signs, however, due to the pending Texas Supreme Court ruling on Auspro, the department also notes that any rule in Chapter 21, Subchapter I, not amended or repealed by this rulemaking continues in effect under new Transportation Code, Chapter 391. Vegetation management was not considered as it would require statutory authority to adopt and is not properly the concern of Chapter 391, which regulates signage outside of the public right-of-way.

Amendments to §21.141, Purpose, replace the term "division" with "subchapter" and "outdoor advertising" with "commercial signs" to address the changes necessary to implement SB 2006 and to reflect the elimination of Chapter 21, Subchapter I, Division 2, Electronic Signs. With the elimination of the electronic sign division there is no longer a need for references to divisions in this subchapter. The rules under the electronic sign division have been merged into the general rules. All the rules under this subchapter apply to electronic signs unless noted in the specific rule. There were no comments regarding these changes so they were not amended.

Amendments to §21.142, Definitions, add definitions for "commercial sign," "conforming sign," "electronic sign," "lawfully erected," "stacked sign," and "zoned commercial or industrial area." These terms are used throughout the chapter and the department has determined that providing clear definitions will benefit the regulated community. The definition for "commercial sign" follows that of the language of new Transportation Code, §391.001. This new definition will ensure that the department is not regulating speech. The definition for "electronic sign" has been moved without change from Division 2.

In addition, the department has clarified the definitions for several terms. These changes will give the regulated entities a better understanding of the department's use of these terms. The definition of "highway" was amended to include a roadway project for which the Texas Transportation Commission (commission) has authorized the purchase of right of way. With this change the department believes that we have clearly stated the time the highway is subject to sign regulations. The definition of "public park" was replaced with "public space" to include additional areas that are similar in nature to a public park based on comments the department received.

Amendments to §21.143, Permit Required, conform to use of the term "commercial signs."

Amendments to §21.144, License Required, require the licensee to notify the department of any change to their contact information within 30 days of the change. This will provide the department with the information needed to contact the licensee for future notices.

Amendments to §21.145, Prohibited Signs, provide that a sign may not be erected or maintained on the real property of another without the property owner's permission. The property owner's permission is currently a requirement of the sign permit application. With the new online application process, the department no longer will require the property owner's signature and this change clarifies that the property owner's permission is still required. In addition, the amendments add a reference to Transportation Code §393.002, regarding the prohibition of commercial signs in the state right of way.

Section 21.146, Exempt Signs, is repealed to comply with SB 2006. Because the changes result in only commercial signs being regulated under the department's Highway Beautification program, the exemption of various types of non-commercial signs is no longer needed.

Section 21.147, On-premise Sign, is repealed to comply with the changes to the statute by SB 2006. The distinction between on-premise and off-premise signs is not used under SB 2006 amendments to Transportation Code, Chapter 391. The statute now requires the regulation of commercial signs only. Under the definition of "commercial sign," signs that would have been previously classified as "on-premise" are excluded from regulation.

Section 21.148, Exception to License Requirement for Nonprofit Signs, is repealed as unnecessary under SB 2006. Nonprofit signs do not meet the definition of commercial signs and therefore, are not regulated.

Section 21.149, Nonprofit Sign Permit, is repealed as unnecessary under SB 2006.

Amendments to §21.150, Continuance of Nonconforming Commercial Signs, remove references to nonprofit signs and clarify that a nonconforming sign must be maintained in accordance with the current permit to be eligible for renewal. This change makes it clear that the sign must continue to match the provisions of the permit to hold its nonconforming status and conforms the rules to the department's current procedures.

Section 21.151, Time Proposed Roadway Becomes Subject to Division, is repealed to simplify the time that an existing sign comes under these regulations. The definition of "highway" was amended to include a roadway project for which the commission has authorized the purchase of right of way. With the change to the definition, this section is not needed.

Amendments to §21.152, License Application, address changes necessary to implement the new online application process. The changes require the applicant provide the applicant's email address and remove the requirement that the application be signed and notarized. The department has developed an online system to streamline the application and renewal process and the changes were necessary to implement the new process. The rules continue to provide for a written application that is mailed to the department and language is added to address the requirements for the mailed application.

Amendments to §21.153, License Issuance, provide the licensee the ability to amend a license by filing an amended application. This change streamlines the process for the department to receive updated information from the licensee.

Amendments to §21.154, License Not Transferable, merely replace the term "division" with "subchapter" to reflect the elimination of divisions within Chapter 21.

Amendments to §21.155, License Renewals, clarify that a license must be renewed annually. The department is now requiring that the license renewal application be provided to the department by the 15th day of the month in which it expires. Language is also added to clarify the fee for late renewals. The current rules include the $100 fee for renewals that are received within 45 days of the expiration but the language is only included in §21.156 regarding the fees. The department is adding the language to this section to make it clear that the department does accept late renewals if received within 45 days of the expiration. In addition changes are made to accommodate the online renewal process by eliminating the need for signatures.

Amendments to §21.156, License Fee, add credit cards to the types of payments accepted to accommodate the new online system. The changes also remove the 20-day requirement for the provision of a renewal notification. The section still requires the second renewal notification but no longer requires it within 20 days. With the new system and the use of email the department believes this requirement is not necessary.

Amendments to §21.158, License Revocation, update an amended section heading and require a request for an administrative hearing to be sent to the address listed on the enforcement notice. This change will eliminate the misdirection of these requests and allow for a timely filing of the administrative action.

Amendments to §21.159, Permit Application, make changes necessary to address the online application process. The online application requires removal of original signatures and notarization for the online application. These requirements are still applicable to a paper application. The department is also now accepting credit card payment through the online system and that change is also reflected in this section. The additional requirements for an electronic sign have been moved unchanged from §21.253, Issuance of Permits, and §21.258, Emergency Information.

Amendments to §21.160, Applicant's Identification of a New Commercial Sign's Proposed Site, address issues relating to identification of the sign. The department has noticed that on occasions there have been discrepancies between permit application location and the stake or identifying mark placed at the sign location. The changes clarify that the stake must be on the parcel of land indicated on the application. If the wrong parcel has been identified, the department may not have the required land owner information.

Amendments to §21.161, Site Owner's Consent; Withdrawal, make the changes necessary to address the online application process. The amendments also replace the term "division" with "subchapter" to address the changes necessary to reflect the elimination of divisions within Chapter 21 and adds "commercial" immediately before "sign" to implement SB 2006.

Amendments to §21.162, Permit Application for Certain Preexisting Commercial Signs, provide additional guidance on the process for addressing preexisting signs. The section currently requires a sign owner to apply for a permit upon notification that the highway is about to come under the program, but the section does not state the consequences for failure get the permit. The amendments provide that failure to obtain the permit will result in the department issuing an order of removal. In addition, the amendments provide that the department may issue a non-conforming permit if the sign does not meet the current regulations. This is the process the department currently follows and the language was added to give the sign owner's notice of the process.

Amendments to §21.163, Permit Application Review, address the issues related to a paper application. The department reviews permit application in the order received, however the department wants to make it clear that the application must be complete to hold its priority place. The timing of a permit application submission might affect the sign's location eligibility. The department does not want a licensee using the application process to hold sign locations. In addition, new language provides that the department will notify the applicant if the application is not accepted as complete. The department will not return a copy of the application. This requirement is not necessary with the new online process.

Amendments to §21.164, Decision on Application, remove language that required the department to notify the land owner if the sign application was denied. The department is not involved in the relationship between the applicant and land owner and has found this requirement to be unnecessary. Changes also address the discontinuation of the permit plate and to be consistent with the changes to §21.163, Permit Application Review.

Section 21.165, Sign Permit Plate, is repealed, as the permit plate is an outdated method of identifying and connecting the permit to the particular sign. With the new online system and electronic inventory, the department does not need to view the permit plate to access the permit for the sign. The department is now able to access that information by electronic location information.

Amendments to §21.166, Commercial Sign Location Requirements, provide new direction on when the department will determine a location unavailable due to a pending construction project. If the department has received environmental clearance for a construction project, the department will have the discretion not to approve a location that will be within that project's boundaries and after a project has received environmental clearance and is advanced enough to prohibit the erection of a new sign that will have to be removed to accommodate the project. This will eliminate the expense of erecting a sign that will need to be removed once the construction project begins. In addition, provisions from §21.155, Location, have been added to this section to address the required changes to combine the two divisions. The language is unchanged except for non-substantive editing changes made to accommodate the new section.

Amendments to §21.167, Erection and Maintenance from Private Property, add the word "commercial" immediately before "sign" to implement SB 2006 and change "licensee" to "license holder" for consistency with other rules in this chapter.

Amendments to §21.168, Conversion of Certain Authorization to Permit, remove the reference to the permit plate to address the repeal of §21.165, Sign Permit Plate.

Amendments to §21.169, Notice of Commercial Sign Becoming Subject to Regulations, require the sign owner to obtain a permit for the sign within 60 days of the notification of a sign becoming subject to Transportation Code, Chapter 391. The amendments provide that if the sign owner fails to obtain the permit or if the sign owner cannot be located, the department will initiate a removal action. Without this language it was difficult to determine when the department will proceed to the removal stage.

Amendments to §21.170, Appeal Process for Permit Denials, address electronic means of filing the appeal. The section currently requires an appeal request to be mailed to the executive director. The amendments provide that the request will go through to the Right of Way Division and allow the request to be emailed. The amendments delete the requirement of submitting a copy of the application as it is unnecessary for the review process. Subsection (d) is deleted as the department is able to process the appeal within 60 days of receipt, so the language requiring notification of a delay is not necessary.

Amendments to §21.171, Permit Expiration, merely replace the term "division" with "subchapter" to reflect the elimination of divisions within Chapter 21.

Amendments to §21.172, Permit Renewals, provide a clear requirement that the permit must be renewed prior to the expiration date, that by filing the renewal the permit holder is asserting that the sign meets all requirements, and that the issuance of the renewal does not indicate that the department has determined that the sign continues to meet all requirements. The department has experienced enforcement complications by issuing renewals without annually verifying the signs compliance with all requirements. Except for the initial inspection, the department does not have the necessary staff to review each sign prior to the annual renewal and wants to expressly provide that the issuance of the renewal is not evidence of the department's approval changes made to the sign since the last inspection. Language is also added to accommodate the new electronic application process. In addition language is added to make it clear that the department will not renew the permit if the permit holder has not demonstrated an identifiable access route from private property. This change is needed to address the continual use of highway right of way for the maintenance of the signs.

Amendments to §21.173, Transfer of Permit, address the new online application process. Subsections (e) and (f) regarding nonprofit signs have been deleted as these types of signs no longer fall within the regulation of the program.

Amendments to §21.174, Amended Permit, address the new online application process. Language has been added to provide that if the changes approved by the amended permit are not completed within one year after the date that the amended permit is issued, the permit holder must reapply. This change brings the amended permit in line with the current requirement that the sign to be erected within one year of initial issuance of a permit for the permit to be eligible for renewal. In addition, changes clarify that the structure, as built, must be as approved by the department and changes to size, height, or configuration cannot be made without an amended permit. An amended permit cannot be used to change the location of the sign. A change of location requires a new permit application because the change could affect other applications under review and may require the department to get new land owner information. Language is added to describe the additional requirements for obtaining an amended permit for conversion to an electronic sign. This change makes it clear that the approval of the city in which the sign is located is required for this type of amended permit.

Amendments to §21.175, Permit Fees, make the necessary changes to address the deletion of Division 2 regarding electronic signs, the removal of non-profit signs from the program and the new online application and renewal process. With the repeal of Division 2 regarding electronic signs the language regarding the fees for electronic sign permit is not necessary and has been removed. The fees for both static and electronic permits are the same. The late fee is clarified by adding language that states it is owed if the fee is not received prior to the expiration date. There has been some confusion as to when the late fee was required which should be clarified by the new language.

Amendments to §21.176, Cancellation of Permit, clarify when a permit will be cancelled. Language is added to clarify that the permit will be cancelled if the sign is accessed, erected, repaired or maintained from the right of way. The current language created an additional obstacle for enforcement by stating that the sign could not be accessed from private property. The department does not need to prove that there were no available private property accesses only that right of way was used. In addition, a new cancellation provision is added for failure to pay an administrative penalty charged. If a sign owner refuses to pay the administrative penalty for a sign violation, the next action by the department will be to cancel the permit. The department must be able to enforce the administrative penalties to improve compliance with the rules.

Due to confusion, language regarding notification of the violation and opportunity to cure the violation has been moved from §21.176 to new §21.205, Curable Commercial Sign Permit Violations. The department's enforcement actions have been challenged because the language currently says the department may cancel the permit. With the change to the new section the department is making it clear that failure to cure the violation as requested will result in cancellation. The landowner notification is deleted from §21.176, as the department has found this to be unnecessary.

Amendments to §21.177, Commercial or Industrial Area, merely replace the term "division" with "subchapter" to address the changes necessary to reflect the elimination of divisions within Chapter 21.

Amendments to §21.178, Zoned Commercial or Industrial Areas, merely replace the term "outdoor advertising" with "commercial signs" to address the changes necessary to implement SB 2006.

Amendments to §21.179, Unzoned Commercial or Industrial Areas, merely replace the term "division" with "subchapter" to address the changes necessary to reflect the elimination of divisions within Chapter 21.

Amendments to §21.180, Commercial or Industrial Activity, revise "division" and "outdoor advertising" and use the defined term "public space" in the place of recreational facility.

Amendments to §21.181, Abandonment of Sign, streamline the process for determining if a sign has been abandoned. The current rules provide that to be abandoned a sign must be without content for one year, overgrown by vegetation, or need repairs. The amendments remove the one year requirement for advertising or copy because it is essentially a restatement of the legible content requirement and is an impediment to enforcement. The department does not inventory every sign every year. A sign could be in the state of abandonment for some time before identified by the department and having to show that the sign was in the same state for one year from the time of the initial review creates unnecessary delay. The department has found that having pictures of the sign on four separate dates without copy has not been beneficial in establishing abandonment of the sign and this language has been removed. Subsection (e), regarding the availability of the location, is deleted as unnecessary. If the sign permit is cancelled, the availability of the location for a new sign permit would be determined under the general location provisions. Subsection (h) is moved to new §21.205, Curable Commercial Sign Permit Violations. Section 21.205 provides the same 60 day notice and cure provisions that currently are in subsection (h).

Amendments to §21.182, Commercial Sign Face Size and Positioning, provide that an electronic sign may have two electronic sign faces but only if the faces are facing different directions. This requirement is moved from §21.155, Location, to accommodate the combining of the two divisions of this subchapter.

Amendments to §21.184, Location of Commercial Signs Near Public Spaces, replace "public park" with the newly defined term "public space."

Amendments to §21.185, Location of Commercial signs Near Certain Facilities, add the word "commercial" to the title of the section to make it consistent with the new terminology of these rules.

Amendments to §21.186, Location of Commercial Signs Near State Right of Way, change the title of the section to make it consistent with the new terminology of these rules and to clarify the section applies only to state-held right of way.

Amendments to §21.187, Spacing of Commercial Signs, delete subsection (h), providing exceptions for on-premise, directional, and official signs, as unnecessary because the amended rules apply only to commercial signs.

Amendments to §21.188, Wind Load Pressure, delete the requirement that the certification be signed to accommodate the new online application process.

Amendments to §21.189, Commercial Sign Height Restrictions, implement the provisions of SB 312 regarding the height of commercial signs in existence on March 1, 2017, but not thereafter. SB 312 added new Transportation Code §391.038, Sign Height, which states that a sign existing on March 1, 2017 may not be higher than 85 feet, excluding cut outs. Language was also added to allow signs that a sign owner could rebuild a sign that was in existence on March 1, 2017 without obtaining an amended permit provided that the sign was rebuilt at the same location and at a height that does not exceed the height the sign was on March 1, 2017. This change will not affect any signs erected after March 1, 2017. The Commission determined that all new commercial sign permits will have to comply with the existing 42-1/2 foot maximum height. In addition, these provisions allow a conforming sign that is 85 feet or less on March 1, 2017 to be rebuilt as to height without obtaining an amended permit as allowed by SB 312.

Amendments to §21.190, Lighting and Movement on Commercial Signs, add provisions that were in Chapter 21, Division 2 regarding electronic signs. The amendments add no new lighting restrictions. The changes were necessary to address merger of the two divisions of Chapter 21.

Amendments to §21.191, Repair and Maintenance of Commercial Signs, clarify that routine maintenance includes changing all parts of the sign structure, and not just the sign face, if the same type of materials are used. A reference to Transportation Code, §391.038, regarding the sign height requirements, is included to implement SB 2006. The statute provides that a sign existing on March 1, 2017, can remain at the height on that date up to 85 feet, regardless of the maximum height set by rule. The statute also provides an exception to obtaining an amended permit and therefore, a reference to that exception is needed in this rule.

Amendments to §21.192, Permit for Relocation of a Commercial Sign, require that a sign must be timely removed from the construction site to be eligible for the relocation provisions. Signs that remain in the construction area or that must be removed by the department are an added expense to the department. The relocation provisions are a benefit to the sign owner; however, the department believes the sign owner must meet its obligations to be eligible for this benefit. The language regarding waiving the permit fee is also removed. The relocation application requires the same amount of review as a new permit and therefore, to maintain the revenue neutral aspect of the program, the fee needs to be charged for this permit.

Amendments to §21.193, Location of Relocated Commercial Sign, replace "public park" with "public space." References to on-premise signs have been removed to comply with SB 2006. The amendments delete the requirement that a sign must be relocated to the same parcel of land and the requirement's exception has been removed. The department finds this restriction to be an unnecessary step in the relocation approval process. Under the amended rule a sign owner is able to find a new location that meets the requirements without having to demonstrate that the current parcel in not feasible for use.

Section 21.194, Construction and Appearance of Relocated Sign, is repealed as unnecessary. The necessary provisions of this section are addressed under the permit requirements. The department has not found a benefit in requiring the same materials be used in the new sign. An eligible sign permit can be amended to allow for different sign faces, lighting, and other features and by prohibiting these changes from this permit process is unnecessary.

Amendments to §21.195, Relocation of Commercial Sign with Certified Cities, replace "municipality" with "certified cities" in the section heading to clarify that the section applies to municipalities that are approved as certified cities under §21.200. Subsection (b) is deleted as the relocation benefits are an aspect of the purchase of the right of way and not handled the Highway Beautification Program.

Section 21.196, Relocation Benefits, is repealed as relocation benefits are an aspect of the purchase of the right of way and not the sign permit process.

Amendments to §21.197, Discontinuance of Nonconforming Commercial Sign Due to Destruction, provide for the provisions of SB 312 by adding a reference to Transportation Code, §391.038.

Amendments to §21.198, Order of Removal, provide that the department will notify the land owner of the removal requirement if the sign owner cannot be determined. This is needed for the instances in which the sign owner is no longer operating and cannot be identified. The land owner will then be responsible for the sign on the land owner's property.

Amendments to §21.199, Destruction of Vegetation and Access from Right of Way Prohibited, merely replace "division" with "subchapter."

Amendments to §21.200, Local Control of Commercial Signs, add a reference to a certified city for clarification and to use the term commonly used by the department when referring to cities that have been granted local control.

Amendments to §21.201, Fees Nonrefundable, and §21.202, Property Right Not Created, merely replace "division" with "subchapter."

Amendments to §21.203, Complaint Procedures, replace "outdoor advertising" with "highway beautification" and "sign" to address the changes required under SB 2006.

Amendments to §21.204, Administrative Penalties for Commercial Signs, remove the penalties for no permit plate because permit plates are no longer required and revise the wording of the violation for improper placement of a sign to conform to the requirements of §21.160. Subsection (d) is deleted and replaced with subsection (g) for clarity and to conform to other provisions in rules related to cancellation of a permit.

New §21.205, Curable Commercial Sign Permit Violations, is added to address confusion caused by §21.176, Cancellation of Permit. The department has identified problems with the regulated community's understanding when a notice provides a right to cure a violation. This new section provides the department with a separate action prior to the cancellation notification. If the sign owner fails to cure the violation, department will move to the cancellation provisions of §21.176, Cancellation of Permits. The department believes that providing all of the violations that can be corrected in one section will be clearer to the affected industry.

New §21.206, Requirements for An Electronic Sign, gathers provisions from various sections of Division 2 of Chapter 21, Subchapter I. The department has found that having the two divisions has led to confusion in the regulated community. Division 2 provided additional provisions for electronic signs, while each rule in Division 1 applied to an electronic sign unless the rule was in direct conflict with a provision of Division 2. Whether a provision was in direct conflict was subject to varying interpretations. With the merging of the two divisions, the department has clarified the electronic sign process. This new section does not add new requirements but rather revises current §21.257, Requirements, §21.258, Emergency Information, and §21.259, Contact Information.

Division 2, Electronic Signs; §§21.251 - 21.260, is repealed and the content of the sections in the division are merged into the appropriate commercial sign provisions of the amended rules for clarity and ease of understanding by the regulated community.

COMMENTS

There were a total of 4,747 responses to the proposed draft rules, the overwhelming majority are on the height issue. There were also 590 comments on vegetation management which are outside the scope of these rule changes. Comments were received from the Office of Representative Bohac, Office of Representative Burkett, Office of Representative Cook, Office of Representative Craddick, Office of Representative Geren, Office of Representative Kuempel, Office of Representative Morrison, Office of Representative Roberts, Office of Representative Thompson, Office of Representative Villalba, Office of Representative Wray, Office of Senator Hinojosa, Office of Senator Nichols, Office of Senator Watson City of Florence, City of Fredericksburg, City of Houston Mayor's Office, City of Humble, City of Paris City Council, City of Richmond, Clarksville Texas, and from 281 Lumber, AAA Fire, Ace Hardware, Advill AC, Ag Texas Farm Credit Services, AiUnited, Inc., AKSPP, LCC, Alamo Outdoor Signs, Ltd., Alice Management Co., LLC, All battery, Altom Consulting & Marketing, Inc., Ambiotec Group, American Equipment & Trailer, Antique Gallery, Audie E Ray Real Estate, Austin Crane Service, Avalon Properties Co., B&C Constructors L.P., Bates Design Associates, LLC, Baymont Emergency Room, LLC, BC Lodging, LLC, Belton LLC, Bennett Holding, Inc., Best Western Plus, Bill Clark Pest Control Inc., Billingsley Company, Bird's Nest Guest Cottages, BJ Electric Company, Blackland Implements, Bohreer & Zucker, LLP, Bonilla & Chapa, P.C., Brazos Valley Museum of Natl. History, Briggs & Caldwell, Burgerworks Texas LLC, Business Investment & Development Corp., C. Doornbos, Inc., Cable's Roofing, Cain Agency, Capehart Estate, CareBOX Program, Carroll Garage Doors, CAW Company, Inc., CC Land Development, CCCK Corporation, Celebrate Texas, Citizens' Transportation Coalition, Dairy Queen, Collision Masters, Corpus Christi Gas Department, Corpus Christi Police Department, Costillas Ltd., Crime Stoppers, Crown Dental, CSA Realty Group, Cushman & Wakefield, D&R Transport LLC, Dansco Manufacturing Inc., Deitra Robertson Real Estate, Inc., Delta Media, Inc., Delva Real Estate, Der Kuchen Laden, Douglas Memorial CME Church, Douglass Distributing Retail Co., DR Horton Homes, Eagle Mountain Dental, East Side Self Storage, Enfield Partners, ERW Family Investment, LTD, Express MD Urgent Care, Facility Solutions Group, Families for Autism Support, Family Partnership, Ltd., Farrar Graphics, Federal Highway Administration, Ferguson Realty Company, Finney Insurance Group, Inc., First Community Bank, Focus Cabernet Properties, LLC, Forney Family Dentistry, Frayre Engineering, Fredericksburg Convention and Visitor Bureau, Fullerton's Collision Center, Inc., Garza Masonry Stone, Inc., GHD Engineering Group, Inc., Gillespie County EDC, Glo-Sue, Gobaheva, LLC, GoingOut, Good Samaritan Ministries, Goodwill Industries of East Texas, Inc., Goodwill Industries of Northwest Texas, Inc., Grandstone Corp., Greater Houston Partnership, Greater Texas FCU, Greer Ironworks, Ham Orchards, Harris County Office of Homeland Security, Hays County Food Bank, Head Insurance, Heartbeat Pregnancy Center, Herrman & Herrman, PLLC, Hill Country Alliance, Hit Ventures, Holiday Inn Express, Home2 Suites, Houston Police Department, Houston Sign & Service, Ibrahim Investment Corp., iCare Emergency Centers, IIAP, Interstate Batteries, Interstate PowerCare, JA Properties, Ltd., JAT Properties LLC, Jeff Herrington Communications, JGI Outdoor Advertising, Johnson & Lindley, Jones Baker, Jordan Dental, Jurassic Car Wash, Justin Family Dentistry, Katy Trail Animal Avenue, Keller Realty, Keller Williams, Keller Williams Realty RGV, Kelray Properties, Kerr County Republican Party, Keystone Investments, Lamar Advertising Company, LaRoche & LaRoche, Inc., Las Palmas Rental LLC, Law Office of Grant S Goens, PLLC, Law Offices of Steven Williams, Lawson Insurance Agency, Leaderquip, Lone Star Food Stores, Lonestar Outdoor, Love & Son, Inc., Lubbock Truck Sales, Lucas Funeral Homes & Cremation Services, Marie Pigg Real Estate, Marshall's Dream, Mason Harrison Ratliff Enterprises, LLC, Mayor of Belton, Mayor of Rosenberg, McAllister Equipment Co., MDR Advertising, Media Choice, LLC / Acme Partnership, LP, Mercedes Builders Ltd, Mercedes Storage, Meyer's Elgin Smokehouse, Midtown Arts & Theater Center Houston, Mill Creek Amish, Mill Creek Custom Homes, Mobile RV Service, Monarch Machinery, Moore's Service Center, Multi Media Advertising, Murphy Paving, Museum Park Neighborhood Assn., NB Operations, Neuropathy Alliance of Texas, Neutral Posture, New Horizons Inc., Newk's Eatery, OakBend Medical Center, One Safe Place, Outdoor Advertising Assn. of Texas, Outdoor Advertising Assn. of Texas, Outdoor Image, Outfront Media, LLC, P&A Investments Inc., Peloton Commercial Real Estate, Peloton Commercial, Real Estate, Pet Adoptions of Cuero, Inc., Ply-Tech, Inc., Point A Media, Inc., Point A Media, Inc., Prema Realty, Primary Media, PROLIFE Across AMERICA, Proterra Printing Concepts, Pushermainia Independent Prod., Putnam Management, LCC, Quality Inn Ennis, Texas, Quality of Life Coalition, Quality Resource Management, R Jenkins Family Inv. LTD, R&K Distributors, Ranglers Convenience Stores, Raytheon, RE/MAX of Abilene, Reagan National Advertising, Reagan National Advertising, Inc., Reyes Investments, Richland Creek Cattle Company, Inc., Richland Creek Cattle Company, Inc., Richland Creek Cattle Company, Inc., Ross Ray Insurance Agency, RS New Braunfels, Ltd., Sassy Shoe Social, Inc., Save Our Scenic Hill Country Environment, Inc., Scenic San Antonio, Scenic Texas, Schlitterbahn, SE Homes of Texas, Senter, Realtors, SettlePou, Shefman Law Group, Shehnaz Enterprises LLC, Sierra Homes, Signs Manufacturing Corp., SjoBrand, Inc., Smither Park, Smyer ISD, Splashway, Starks Construction Co., State Farm Insurance, Storyfest Assn., Straight Line Metal Buildings, Superior Firearms, Swan Trading Post, SwiftWater, SYNERGY HomeCare of Alliance-Denton, Tarrant Concrete Co., Inc., Tejas USA Services, Teni Trak Inc., Texas Ally, Texas Apartment Assn., Texas Association of Business, Texas Brain Injury Alliance, Texas EquuSearch, Texas Legends Steakhouse, Texas Municipal League, Texas OOH Media, Texas Retailers Assn., Texas Weddings, The Connection Church, The Richeson Group, The Triple D, Thunder Pump Service, Too Big, Inc., Touch of Class Antique Mall, TPMC Realty Corporation, Tradecraft, Trow Bridge Urban, Two Twelve Co, Inc., TXRH Corpus Christi, ValMark Chevrolet, Van Zandt Properties, Ven-Ken, Inc., Viceroy Investments, LLC, Visit McAllen, Voelker Custom Homes, Warren Brothers Farms, Weaver Motors, Wes Tex Steel, West Amity Land Development, Westchase Community Association, White Media Services, Willie Long Bridals, Wilson ISD, Wings by the Border, Inc., Woodway Car Center, Wrangler Estates, Wulfe & Co., WW Laubach Trust, Zenzero Kitchen, Zesch Properties, LLC. The department also received comments from 4408 private citizens all commenting on the height issue.

Comment: Two comments regarding the definition of "commercial sign" in §21.142 were received from the Outdoor Advertising Association of Texas (OAAT). First, they suggested that the department delete the exemption of smaller 50 square foot signs because it is commercially viable to have sign faces this small and they need to be regulated. Second, they suggested that the department clarify that the primary purpose test for property in §21.142(b).

Response: First, the department agrees and deleted the exemption of smaller signs because it is commercially viable to have 50 square foot sign faces and we agree as provided by the statute that the department should regulate all commercial signs. Second, the department also agrees that clarification for primary purposes is needed. The department added the word "economic" to clarify that the land must be owned or leased for a primarily economic reason to display a sign.

Comment: Reagan National Advertising commented that the definition of "lawfully erected" in §21.142(12) should include signs covered by Trans. Code §391.038.

Response: The department agrees with this comment and amended §21.142(12) to accommodate the new Trans. Code §391.038 by adding "or as later allowed by law" to the definition. This will allow a sign built in violation of the height requirement but within the new statutory exception of §391.038 to maintain its conforming status as established by the change in statute.

Comment: OAAT commented that the definition of "public space" in §21.142(24) was unclear as to how a "space" was designated.

Response: The department agrees with this comment and has amended the language to clarify that a governmental entity had to designate the space.

Comment: JGI commented that the change from public park to public space is an unnecessary expansion of regulatory authority.

Response: The department disagrees with the comment as there is no expansion of the regulatory authority because the type of areas considered in this rule has not changed. The department has found the word "park" was confusing to the industry because not all such areas are commonly thought of as parks, e.g. nature preserve or scenic area. Therefore, the department clarified by changing the word "park" to "space" to better fit the listed items.

Comment: Reagan National Advertising commented that the definition of "sign face" in §21.142(29) did not clearly distinguish the copy from the structure, which resulted in vinyl covering draped over two sign faces being counted by the department as one "sign face."

Response: The department agrees with this comment and has added language to clarify that the sign face is a structure designed to contain copy.

Comment: §21.142(33) defined a "Zoned commercial or industrial area," that conflicted the definition found at §21.180.

Response: The department agrees with the comment and has deleted §21.142(33), the definition of "commercial or industrial area," because this term is defined in more detail in §21.178.

Comment: OAAT commented that the current §21.159(b) should remain as there are some cities that require a TxDOT permit prior to the issuance of the city permit.

Response: The department disagrees with the comment because the requirement to provide a certified copy of the city's permit only applies to locations for commercial signs within the extra territorial jurisdiction of municipalities with a population of 1.9 million or more and has not improved the application process.

Comment: OAAT commented that the department denies permits for spacing where an applicant applies for a location that is in conflict with another permitted sign owned by the same applicant.

Response: The department agrees that the current process does not allow a sign owner to replace a current sign with a new sign in at a conflicting location. Section 21.159(h) has been amended to allow an applicant the ability to apply for and obtain a provisional approval pending the removal of the existing sign within 30 days. The new language provides that if the existing sign is not removed within 30 days the new sign application will be denied. The department believes this will allow the sign owner the flexibility he needs to manage their sign inventory.

Comment: OAAT commented that identifying the proposed sign location based on the edge of the sign face potentially creates spacing inconsistencies because sign face configuration may change over the life of the sign.

Response: The department agrees, and has amended §21.160 to state that the center pole is the point of reference of sign location.

Comment: OAAT commented that the department should not inquire about the legality of an existing sign under §21.162, and requests that the department delete the condition that the sign be lawfully erected.

Response: The department agrees in part and disagrees in part. First the department agrees that the term "lawfully erected" required further clarification and modified §21.142(12) to include a reference to changes in law. Second, the department disagrees with the removal of this requirement because it has a legitimate duty to only permit legal signs.

Comment: Reagan commented that the changes to §21.166(c) to prohibit the issuance of a permit for a location that is within a section of a highway that has received environmental clearance and alignment approval but the construction contract has not been awarded is too restrictive. Reagan argues that this process can take years and it is not equitable to eliminate the potential sign locations.

Response: The department agrees in part and has removed the language regarding the approval of the alignment from the Federal Highway Administration. The department continues to believe that issuing a permit for a location that is within the right of way for a pending construction project is not in the best interest of the state. The department disagrees that this is an unequitable requirement in that the construction project will require an unnecessary expense to the sign owner for the removal of a newly constructed sign.

Comment: Media Choice commented that the location requirement of §21.166(e) places a 1500 radius restriction of electronic signs and requested that the department add language so that the 1500 foot restriction only applies to electronic signs on the same side of the highway.

Response: The department disagrees. Removing the spacing restriction would allow two electronic signs facing in the same direction of travel on opposite sides of the road. The department believes this would be distracting for drivers and therefore would be unsafe.

Comment: Reagan commented on 21.166(e) suggesting that the department should only limit electronic signs on the same freeway or we should change the spacing to be consistent with static signs.

Response: The department disagrees. Spacing is restricted based on visibility from the main traveled way and this is consistent with static signs. However, the department does not believe that the spacing requirements for electronic signs should be reduced.

Comment: Reagan National Advertising commented that §21.169(c) required a sign owner to obtain a permit within 60 days of notification that sign is now on a regulated highway and requires a permit when the owner had no control over the issuance of the permit by the department.

Response: The department agrees and amended §21.169 to require the owner to apply for the permit within 60 days

Comment: Reagan commented that the language of §21.172(i) stating that the renewal of a permit does not indicate that the sign is in compliance with applicable regulations limits the department's authority and lowers the accountability standards. Reagan requests that we remove that language.

Response: The department disagrees. The license holder is responsible for maintaining the permitted sign in compliance with the regulations. The department must rely on the license holder to certify compliance with the regulations when the permit is up for renewal because the department does not have the resources to inspect every sign before each renewal date.

Comment: OAAT commented and requested removal of §21.172(d) regarding proof of legal access.

Response: The department agrees. The identified language was deleted because the language as proposed was not clear. The department added language to the new §21.172(d) to state the department will confirm the legal access at the time of first year inspection.

Comment: Reagan National Advertising commented on §21.174, Amended Permit, that operational business decisions at the time of erection should be allowed without additional paperwork as long as the sign remains conforming.

Response: The department agrees with the comment. Currently, variations from the permit application found on the first anniversary renewal required the department to send a notice of violation and the sign owner then had to file for and obtain an amended permit under §21.174(b). In order to make the necessary improvements, several amendments were required to §§21.172, 21.174 and 21.205. The original §21.172(d) and (g) and §21.174(k) were deleted as unnecessary. The new §21.172(d) now reads as follows: "The department will inspect the sign site and the sign structure on or after the first anniversary of the date of the permit's issuance for compliance with applicable law..." A permit will be renewed only if the sign structure has been erected on or before the first anniversary of the date of the permit's issuance. The department will confirm private access to the sign site, and conform the renewed permit to the actual configuration and location of the sign as built in accordance with all applicable rules. The reference to changes from the original permit application were removed from §21.174(b) regarding the amended permit application as that is no longer necessary due to the changes made to §21.172. Also, under the new amendments, just as with all other renewals, if any violations are found on the initial inspection, they would be curable, the permit would be renewed, and the sign owner would be provided an opportunity to cure the violation under §21.205, Curable Violations. These changes provide an improved operating environment and reduce unnecessary regulatory oversight, while maintaining effective control of the signs being erected along regulated routes.

Comment: Reagan commented that the language of §21.174(k) limited the sign company's ability to use the permit to the fullest extent possible. Reagan argued that there could be mitigating circumstances as to why the sign structure was not originally built to the full permit authorization and that those issues should be taken into account prior to changing the permit by the department.

Response: The department agrees. Language was added to 21.172(d) that will conform the permit to the structure as built on the first anniversary of the permit's issuance.

Comment: Media Choice commented that sign owners were unable to match the accuracy of department GPS equipment and therefore, they felt that the 20 foot limitation of building within the permitted sign site was too restrictive. They requested an increase to build within 35 feet of the permitted sign site.

Response: The department agrees with this comment and added language to 21.205(a)(2) to make it clear that, as long as the sign is erected on the same parcel and is otherwise conforming, there is no location violation. This allows the permit holder to erect the sign structure anywhere on the same parcel as the original permit issuance as long as the location of the sign erected meets all applicable regulations.

Comment: OAAT commented that the language of §21.176(a)(2) regarding the ability to cancel a permit that is not maintained in accordance with existing laws is too broad and eliminates the opportunity for the sign owner to cure the violation.

Response: The department disagrees. Whether violations are curable or not curable, notice is sent to the permit holder stating specific reason for the violation, and an appeal is allowed.

Comment: OAAT commented that digital technology had become commonplace and local governments have the power to regulate electronic signs; therefore, requiring an amended permit for the electronic sign from both the department and the municipality in whose jurisdiction the sign is located was duplicative.

Response: The department agrees that the process was unnecessarily duplicative and amended §21.159(g)(1) and 21.174(l) to remove the requirement to provide the approval of the municipality for the particular sign. Language was added to §21.159(g)(1) to require the applicant to provide a copy of the municipality's ordinance demonstrating the allowance of electronic signs.

Comment: OAAT commented that for the purposes of clarity §21.176(a)(2) needed to expressly state that a requirement for cancelation was that the violation had not been corrected in accordance with §21.205.

Response: The department disagrees. The department believes that the language stating the sign must be maintained in accordance with rules or statute is clear. There is not a cancelation violation under the statute unless the period to correct the violation has expired.

Comment: OAAT commented that zoning terminology has "morphed from the simplistic commercial/industrial labels to an alphabet soups of letters used to control growth." What was simply "commercial" zoning are often labeled by cities as "mixed-use" or "business" zoning that allows commercial use of the area, and that §21.178 should reflect these new classifications.

Response: The department agrees and has deleted the definition of 21.142(33), "Zoned Commercial or Industrial Area," and amended §21.178 so that it now provides for a broader local designation by relying on the use of the zoned area and not the label used by the local government.

Comment: Outfront Media commented that §21.178(1) - (4) used "subjective criteria to rebut the published zoning," which made compliance and enforcement difficult.

Response: The department agrees and has made changes to §21.178(1) - (4). The provisions were condensed to three categories that require some degree of actual, objectively determined commercial development to distinguish long term development goals. The three new categories evaluate actual commercial development and also address the federal requirement that a parcel of land designated for commercial or industrial use by a municipality is large enough for actual development and has use that is customarily allowed in commercial or industrial zoned areas.

Comment: OAAT and Reagan commented on §21.181 regarding the abandonment of a sign and requested the department document infractions on two separate occasions prior to filing a notice of violation or provide a reasonable time frame for determining if the sign is in fact abandoned.

Response: The department disagrees. In §21.205, abandonment is a curable violation that requires notice to be sent to the permit holder allowing them 60 days to resolve the alleged violation. If the sign is not abandoned, the sign owner will be able to address the issue prior to any enforcement action on the permit.

Comment: OAAT commented that the 10 percent protrusion of §21.182(c)(2) should be increased to 20 percent.

Response: The department disagrees and is not making the requested change. OAAT provided no data as to why the 20 percent rule was not appropriate therefore the department has no basis to justify the change.

Comment: Media Choice commented that §21.185(a) restricting signs from within 1000 feet of interchanges, intersections, rest areas, ramps, acceleration or deceleration lanes is too restrictive and requests that we follow the federal state agreement and reduce the restriction to 500 feet.

Response: The department disagrees and believes the spacing requirements improve safety and is not considering reducing any spacing requirements in these rule revisions.

Comment: Lamar commented that TxDOT's rulemaking authority is limited to regulation of "outdoor advertising consistent with customary use of outdoor advertising in this state," and that height is not consistent with customary use of outdoor advertising, therefore rules regulating height exceed TxDOT's rulemaking authority.

Response: The department disagrees that regulating the height of commercial signs is outside the scope of the department's authority. The department is statutorily authorized to oversee the permitting of commercial signs and to adopt rules to achieve this objective. The height of the signs is within the commission's rulemaking authority.

Comment: The department received 4,704 comments on §21.189 regarding the maximum height for commercial signs. Comments were received from 2,010 commenters requesting a change to the rule to allow a maximum height of 85 feet or a removal of the height restriction, and 2,694 commenters supporting maintaining the current 42.5 foot limit for all new commercial signs. The following legislators supported a limit of 85 feet or no limit: Representatives Bohac, Cook, Craddick, Geren, Kuempel, Villalba, and Wray. The following legislators supported the proposed limit of 42.5 feet for new signs: Senators Hinojosa, Nichols, and Watson, and Representatives Burkett, Morrison, Roberts and Thompson. Generally, the comments in support of the current 42.5 maximum height requirement were from Scenic America, Scenic Texas, and private citizens. These commenters generally requested the department look at the legislative history of SB 312 to show that the legislature did not authorize the department to increase the height of new constructed commercial signs. They also argued that commercial signs were distracting, raised traffic safety concerns, and affected the scenic aspects of our state. The comments requesting a new maximum height of 85 feet or removal of the maximum height restriction entirely were from the OAAT, sign owners, commercial sign companies, various business and organizations that use commercial signs, and private citizens. They expressed that there are problems with maintaining separate height restrictions for signs erected prior to March 1, 2017 and new sign constructions, that there are no federal regulations regarding height, that the majority of other states that allow commercial signs have no or higher height restrictions, that Texas landscapes are diverse and one height requirement does not work for our state of varied terrain, that there are no height restrictions on noncommercial signs outside municipalities giving them an advantage, that the 42.5 height limit is outdated and does not address the expansion of the highway system to multiple lanes and flyovers, and that the wind load restrictions which insure safety are the only regulations needed.

Response: The department agrees in part to the comments requesting an increase to the maximum height restriction. The validation by SB 312 of certain commercial signs that were erected in violation of maximum height limitations established by commission rules without a corresponding change for later erected signs results in the older signs continuing to benefit from their violations. Maintaining a 42-1/2 foot maximum height results in a significant height advantage for the validated signs that will extend into the future. The department does not believe that the legislature's validation of those signs eliminates the commission's authority to modify the maximum height provisions applicable to other commercial signs. The commission also acknowledges staff's study of height regulations in other states. Staff has determined that only 4 of the 46 states have height restrictions below the current 42.5 feet authorized in this rule. Thirty-six states match the federal Highway Beautification Act and have no height restriction. The states with no height restrictions did not report any problems with the lack of a maximum height restriction or any safety concerns that could be tied specifically to sign height. Subsection (a) of §21.189 is revised on those bases, while acknowledging the potential of future legislative enactments. As revised, subsection (a) provides that if the legislature does not intervene to establish a maximum overall height for commercial signs, the maximum overall height is increased to 85 feet effective September 3, 2019. This revision both seeks further guidance from the legislature on the height limitations and emphasizes the commission's readiness to continue to work with the legislature on that issue.

Comment: Outfront Media and Clear Channel Outdoor commented that measuring height from the centerline of the highway, as required by §21.189, requires access to the state right of way which is prohibited and unsafe.

Response: The department agrees and amended the proposed rule to indicate that the measurement would be from the grade level of the centerline, as determined by the department. This method allows publicly accessible department data to be used for measurement of sign structure height in the field without any person needing to enter onto the highway right of way.

Comment: Scenic Texas and Senator Nichols recommended a definition for the term "ebuild."

Response: The department disagrees that a definition is needed. Transportation Code, §391.038 allows a sign to be rebuilt at the same location without any reference to the federal conforming status of the sign because there is no height standard in the Federal-State Agreement. Under the Federal-State Agreement, nonconforming signs may not be rebuilt in any ordinary sense of the word. Because SB 312 relates only to height of a sign, a sign that is nonconforming on a basis other than height remains nonconforming and cannot be "rebuilt" under the authority provided by SB 312. If a conforming sign owner wants to change the number or size of faces, lighting, or other physical aspects of the sign, an amended permit would be required. The rule amendments were designed to maximize compliance with the requirements of both state and federal requirements.

Comment: Clear Channel Outdoor recommended eliminating the height rule which would in practicality eliminate the exactness of the measurement for height as §21.189 requires. Clear Channel stated "and eliminating the litigation that if this rule is kept, this is sure to continue."

Response: The department agrees in part and has made changes to the language in §21.189 and §21.205 to address height enforcement issues. The department has had problems with enforcing the current height restriction. With the decision to maintain the current height restriction, the department feels it is necessary to make changes to address ongoing enforcement issues. The department has added language to §21.189 and §21.205 to allow height to be a curable offense.

Comment: OAAT and Reagan commented on §21.190(h) regarding the light intensity of electronic signs. Reagan requests that the rule set a standard and OAAT recommended that the department leave the responsibility to the cities.

Response: The department disagrees that a specific standard is necessary or that shifting the responsibility is warranted. Lighting has not presented a significant problem since the adoption of this provision in 2008. To accommodate changing technologies the department has not established a rigid standard. When a lighting issue is identified the department works with the local government to prevent any safety issues.

Comment: Scenic Texas commented that signs should not be relocated under §21.192 since the sign owners were being fairly compensated for the taking of their real property and did not need further compensation. Scenic Texas added that no other business enjoys this privilege.

Response: The department disagrees and will continue to provide the relocation provisions as provided in the rules.

Comment: Reagan commented that §21.192(a) requiring the sign be timely removed to obtain relocation provision benefits requires the early removal of the sign and potential waiver of legal rights.

Response: The department disagrees with Reagan. Permitted sign structures are treated as real property during the eminent domain process. Relocation permit eligibility is provided as a benefit for the timely removal of the sign structure so not to impact road construction projects.

Comment: OAAT commented that it was administratively burdensome to require a relocated sign to be constructed as it was at the original location, and then amend its permit to a new configuration as required by §21.192(d). They commented that it would make sense to simply permit the sign with any new conforming configuration.

Response: The department agrees and deleted the original §21.192(d) that required the permit holder receive the new relocation permit before applying for an amended permit to change the sign structure. The language of §21.192(b) which requires the permit holder to obtain a new permit is no longer restricted by §21.192(d).

Comment: OAAT commented that the 36 month limit in §21.192(f) regarding the submission for a relocated permit, the new §21.192(e), was too short given the increases in highway construction projects and related increase in impacted signs. OAAT requested the time limit be extended or eliminated.

Response: The department agrees that the time limit should be increased. The department believes that to maintain administrative control on the permit process a time limit is required; therefore, the department has increased the time allowed to apply for a relocated permit to 48 months to accommodate larger construction projects.

Comment: OAAT commented that since relocated permits are actually new permits for the sign, some provisions of §21.193 were duplicative of new permit requirements and should be removed.

Response: The department agrees in part. Section 21.193(b) is duplicative of language required for the original permit and is deleted. However, the other provisions provide for reduced or different requirements and therefore, should remain in the rules to allow the reduced requirements for relocated signs.

Comment: OAAT, Media Choice and Lamar commented that §21.206(c) requires the display, when appropriate, of emergency information important to the traveling public. They recommend that this department requirement be made optional as sign companies normally make arrangement with local authorities.

Response: The department disagrees because this type of information is expressly "important to the traveling public" and wants to ensure that the arrangement is made with local and state governmental entities for the display of emergency information.

Comment: The department received 590 comments requesting a vegetation control program for vegetation management in the right-of-way.

Response: The issue of vegetation control is outside the scope of these rules and is not appropriate for inclusion in the commercial sign rules. The department is considering the issue for application to all commercial establishments and not just commercial signs and the issue may be the subject of proposed rulemaking in the future.

Comment: Rothfelder commented that the guidance issued for signs impacted by highway construction projects was not done with proper rule making authority and violates the Constitutional rights of the sign owner.

Response: The eminent domain process and guidelines under that process are outside the scope of these rules. The department is not addressing those issues under these rules.

DIVISION 1. SIGNS

43 TAC §§21.141 - 21.145, 21.150, 21.152 - 21.156, 21.158 - 21.164, 21.166 - 21.182, 21.184 - 21.193, 21.195, 21.197- 21.206

STATUTORY AUTHORITY

The amendments and new sections are adopted under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §391.032, which provides authority to establish rules to regulate the orderly and effective display of commercial signs on primary roads, Transportation Code, §391.0355, which provides authority for the commission to set fees for administrative penalties in association with violation of commercial sign regulations; Transportation Code, §391.065, which provides authority to establish rules to standardize forms and regulate the issuance of commercial sign licenses; and Transportation Code, §391.068, which provides authority for the commission to prescribe permit requirements and set fees for commercial sign permits.

CROSS REFERENCE TO STATUTE

Transportation Code, Chapters 391.

§21.141.Purpose.

This subchapter is established to regulate the orderly and effective display of commercial signs along a regulated highway within the State of Texas.

§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) Commercial sign--A sign that is:

(A) at any time intended to be leased, or for which payment of any type is intended to be or is received, for the display of any good, service, brand, slogan, message, product, or company, except that the term does not include a sign that is leased to a business entity and located on the same property on which the business is located; or

(B) located on property owned or leased for the primary economic purpose of displaying a sign.

(2) Commission--The Texas Transportation Commission.

(3) Conforming sign--A sign legally erected and maintained in accordance with state and federal law, including rules and regulations.

(4) Department--The Texas Department of Transportation.

(5) Electronic sign--A commercial sign that changes its message or copy by programmable electronic or mechanical processes.

(6) Erect--To construct, build, raise, assemble, place, affix, attach, embed, create, paint, draw, or in any other way bring into being or establish.

(7) Freeway--A divided, controlled access highway for through traffic. The term includes a toll road.

(8) Highway--The width between the boundary lines of either a publicly maintained way any part of which is open to the public for vehicular travel or roadway project for which the commission has authorized the purchase of right-of-way.

(9) Interchange--A junction of two or more roadways, including frontage roads with on and off ramps, in conjunction with one or more grade separations that provides for the uninterrupted movement of traffic between two or more roadways or highways on different levels without the crossing of traffic streams.

(10) Intersection--The common area at the junction of two highways that are on the primary system. The common area includes the area within the lateral boundary lines of the roadways.

(11) Interstate highway system--Highways designated officially by the commission and approved pursuant to 23 United States Code §103 as part of the national system of interstate and defense highways.

(12) Lawfully erected--Erected before January 1, 1968 or if erected after January 1, 1968, erected in compliance with law, including rules, in effect at the time of erection or as later allowed by law.

(13) License-- A commercial sign license issued by the department.

(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) Military Service Member--A person who is currently serving in the Armed Forces of the United States, in a reserve component of the United States, including the National Guard, or in the state military service of any service.

(16) Military spouse--A person who is married to a military service member who is currently on active duty.

(17) Military veteran--A person who has served in the Army, Navy, Air Force, Marine Corps, or Coast Guard of the United States, or in an auxiliary service of one of those branches of the armed forces.

(18) National Highway System--Highways designated officially by the commission and approved pursuant to 23 United States Code §103 as part of the national highway system.

(19) Nonconforming sign--A sign that was lawfully erected but that no longer complies with a law or rule because of changed conditions or because the law or rule was amended after the sign was erected or that fails to comply with a law enacted or rule adopted after the sign was erected. Examples of changed conditions are discontinuance of a commercial or industrial activity, decrease in the limits of an incorporated area, reclassification of a roadway, decertification of certified city, and amendment of a comprehensive local zoning ordinance from commercial to residential.

(20) Permit--Written authorization granted for the erection of a commercial sign, subject to this subchapter and Transportation Code, Chapter 391.

(21) Person--An individual, association, partnership, limited partnership, trust, corporation, or other legal entity.

(22) Primary system--Highways designated by the commission as the federal-aid primary system and any highway on the National Highway System. The term includes all roads designated as part of the National Highway System as of 1991.

(23) Processing Area--An area where actions or operations are accomplished that contribute directly to a particular commercial or industrial purpose and are performed during established activity hours.

(24) Public space--Publicly-owned land that is designated by a governmental entity as a park, forest, playground, scenic area, recreation area, wildlife or waterfowl refuge, historic site, or similar public space.

(25) Regulated highway--A highway on the interstate highway system or primary system.

(26) Rest area--An area of public land designated by the department as a rest area, comfort station, picnic area, or roadside park.

(27) Roadway--That portion of a road used for vehicular travel, exclusive of the sidewalk, berm, or shoulder.

(28) Sign--A structure, display, light, device, figure, painting, drawing, message, plaque, placard, poster, billboard, logo, or symbol that is designed, intended, or used to advertise or inform.

(29) Sign face--The part of the sign that is designed to contain information and is distinguished from other parts of the sign, including another sign face, by borders or decorative trim. The term does not include a lighting fixture, apron, or catwalk unless it displays a part of the information contents of the sign.

(30) Sign structure--All of the interrelated parts and materials that are used, designed to be used, or intended to be used to support or display information contents. The term includes, at a minimum, beams, poles, braces, apron, frame, catwalk, stringers, and a sign face.

(31) Stacked sign--A sign with two faces placed one above another on a single structure.

(32) Visible--Capable of being seen, whether or not legible, or identified without visual aid by a person operating a motor vehicle on the highways of this state.

§21.143.Permit Required.

Except as provided by this chapter, unless a person holds a permit issued under §21.164 of this subchapter (relating to Decision on Application) or §21.200 of this subchapter (relating to Local Control of Commercial Signs), the person may not erect or maintain a commercial sign that is:

(1) within 660 feet of the nearest edge of the right of way of a regulated highway if any part of the sign's information content is visible from any place on the main-traveled way of the highway; or

(2) outside of the jurisdiction of an incorporated city and more than 660 feet from the nearest edge of the right of way of a regulated highway if any part of the commercial sign is visible from the main-traveled way of the highway and the sign was erected for the purpose of having its information content seen from the main-traveled way of the highway.

§21.144.License Required.

(a) Except as provided by this subchapter, a person may not obtain a permit for a commercial sign under this subchapter unless the person holds a currently valid license issued under §21.153 of this subchapter (relating to License Issuance) or under §21.450 of this chapter (relating to License Issuance) applicable to the county in which the sign is to be erected or maintained.

(b) A license is valid for one year from the date of issuance or most recent renewal.

(c) Each license holder shall notify the department not later than the 30th day after the date of a change in the mailing address, telephone number, or email address of the license holder.

§21.145.Prohibited Signs.

(a) A sign may not be erected or maintained on the real property of another without the property owner's permission.

(b) A sign may not be erected or maintained within the right of way of a public roadway, as prohibited by Transportation Code, §393.002, or an area that would be within 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 that is not owned by the state or a political subdivision.

(c) A sign may not be erected or maintained on a highway or part of a highway designated under Transportation Code, §391.252.

§21.150.Continuance of Nonconforming Commercial Signs.

(a) Notwithstanding other provisions of this subchapter, the department will renew a permit for a nonconforming sign only if the sign structure was lawfully erected and has been maintained in accordance with the permit being renewed.

(b) A sign that was legally erected before March 3, 1986 in a railroad, utility, or road right of way that is not owned by the state or a political subdivision may be maintained as a nonconforming sign if all other requirements of this subchapter are met.

(c) A nonconforming sign may not be:

(1) removed and re-erected for any reason, other than a request by a condemning authority; or

(2) substantially changed, as described by §21.191 of this subchapter (relating to Repair and Maintenance of Commercial Signs).

§21.152.License Application.

(a) To apply for a license under this subchapter, a person must file an application in a form prescribed by the department. The application must include at a minimum:

(1) the complete legal name, mailing address, email address, and telephone number of the applicant; and

(2) designation of each county in which the applicant's signs are to be erected or maintained.

(b) The application must be filed with the department and be accompanied by:

(1) a fully executed commercial sign surety bond:

(A) in the amount of $2,500 for each county designated under subsection (a)(2) of this section up to a maximum of $10,000;

(B) payable to the commission to reimburse the department for removal costs of a sign that the license holder unlawfully erects or maintains; and

(C) in a form prescribed by the department, executed by a surety company authorized to transact business in this state;

(2) a duly certified power of attorney from the surety company authorizing the surety company's representative to execute the bond on the effective date of the bond;

(3) the license fee prescribed by §21.156 of this subchapter (relating to License Fees); and

(4) if applicable, an indication that the applicant is a military service member, military spouse, or military veteran to ensure priority handling of application.

(c) If a paper application is filed, the form must be complete and the documentation and the fee required under this section must be sent to: Texas Department of Transportation, Highway Beautification Section, P.O. Box 13043, Austin, Texas 78711-3043.

§21.153.License Issuance.

(a) The department will issue a license if the requirements of §21.152 of this subchapter (relating to License Application) are satisfied.

(b) The department will not issue a license to an entity that is not authorized to conduct business in this state.

(c) To amend a license, the license holder must file an amended application in a form prescribed by the department and accompanied by a valid rider to the surety bond.

§21.154.License Not Transferable.

A license issued under this subchapter is not transferable.

§21.155.License Renewals.

(a) To continue a license in effect, the license must be renewed annually in accordance with subsection (b) of this section.

(b) To renew a license, the license holder must submit an application in a form prescribed by the department accompanied by each applicable license fee prescribed by §21.156 of this subchapter (relating to License Fees). The application must be received by the department before the 16th day of the month in which the license expires. The renewal must include at a minimum proof of current surety bond coverage.

(c) An expired license may be reinstated if a renewal application, accompanied by proof of current surety bond and a $100 late processing fee, is received by the department not later than the 45th day after the expiration date of the license. A license reinstated under this subsection will have the same renewal date as if the renewal had been filed timely.

(d) A license is not eligible for renewal if the license holder is not authorized to conduct business in this state.

(e) If a paper renewal application is filed, it must be complete and the documentation and the fee required under this section must be sent to: Texas Department of Transportation, Highway Beautification Section, P.O. Box 13043, Austin, Texas 78711-3043.

§21.156.License Fees.

(a) The amount of the fee for the issuance of a license issued under this subchapter is $125.

(b) The amount of the annual renewal fee is $75.

(c) In addition to the $75 annual renewal fee, an additional late fee of $100 is required for a renewal license application that is received before the 45th day after the expiration date of the license.

(d) A license fee is payable by credit card, check, cashier's check, or money order made payable to the Texas Highway Beautification Fund, and must be submitted with the application. If payment is dishonored upon presentment, the license is voidable.

(e) The department will provide a renewal notification by mail or electronically to the license holder at least 45 days before the date of the license expiration and if the license is not renewed before it expires, the department will provide notification to the license holder of the opportunity to file a late renewal application.

§21.158.License Revocation.

(a) The department will revoke a license and will not issue or renew permits or transfer existing permits under the license if:

(1) the surety bond is not provided within the time specified by the department under §21.152 of this subchapter (relating to License Application) or §21.155 of this subchapter (relating to License Renewals);

(2) surety bond coverage is terminated under §21.157 of this subchapter (relating to Temporary Suspension of License);

(3) the total number of final enforcement actions initiated by the department against the license holder under §21.176 of this subchapter (relating to Cancelation of Permit), §21.198 of this subchapter (relating to Order of Removal); §21.204 of this subchapter (relating to Administrative Penalties for Commercial Signs), §21.425 of chapter (relating to Cancelation of Permit), §21.426 of chapter (relating to Administrative Penalties), or §21.440 of chapter (relating to Order of Removal); or Transportation Code, Chapters 391 or 394, that result in the cancellation of the license holder's sign permit, payment of an amended penalty by the license holder, or the removal of the license holder's sign equal or exceed:

(A) 10 percent of the number of valid permits held by the license holder if the license holder holds more than 1,000 sign permits;

(B) 20 percent of the number of valid permits held by the license holder if the license holder holds at least 500 but fewer than 1,000 sign permits;

(C) 25 percent of the number of valid permits held by the license holder if the license holder holds at least 100 but fewer than 500 sign permits; or

(D) 30 percent of the number of valid permits held by the license holder if the license holder holds fewer than 100 sign permits; or

(4) the license holder has not complied with previous final administrative enforcement actions regarding the license or any permit held under the license.

(b) The department will send notice by certified mail of an action under this section to the address of record provided by the license holder.

(c) The notice will clearly state:

(1) the reasons for the action;

(2) the effective date of the action;

(3) the right of the license holder to request an administrative hearing; and

(4) the procedure for requesting a hearing including the period in which the request must be made.

(d) A request for an administrative hearing under this section must be made in writing to the department at the address listed on the notice letter within 45 days after the date that the notice is mailed.

(e) If timely requested, an administrative hearing will be conducted in accordance with Chapter 1, Subchapter E of this title (relating to Procedures in Contested Case).

(f) For the purposes of this section, an enforcement action is final if the time for any further review of the action or proceeding related to the action has expired.

§21.159.Permit Application.

(a) To obtain a permit for a commercial sign, a license holder must file an application in a form prescribed by the department. The application must include, at a minimum:

(1) the complete name and address of the license holder;

(2) the complete name and address of the authorized agent of the license holder if an agent is used;

(3) the proposed location and description of the sign;

(4) the complete legal name and telephone number of the owner of the designated site;

(5) the appraisal district property tax identification number of the designated site;

(6) city's current zoning of the sign's location; and

(7) additional information the department considers necessary to determine eligibility.

(b) If the sign is to be located within the extraterritorial jurisdiction of a municipality with a population greater than 1.9 million that is exercising its statutory authority to regulate commercial signs, as authorized under §21.200 of this subchapter (relating to Local Control of Commercial Signs), a certified copy of the permit issued by the municipality within the preceding twelve months must be submitted with the application.

(c) The application must be accompanied by the fee prescribed by §21.175 of this subchapter (relating to Permit Fees).

(d) If a paper application is filed:

(1) the applicant must certify that the application is complete and correct;

(2) the application must have original signatures; and

(3) the application, required documentation, and the fee required under this section must be sent to: Texas Department of Transportation, Highway Beautification Section, P.O. Box 13043, Austin, Texas 78711-3043.

(e) A permit application fee is payable by credit card or check made payable to the Texas Highway Beautification Fund.

(f) To facilitate a site's location during the initial inspection process, the application must identify the sign site marking in accordance with §21.160 of this subchapter (relating to Applicant's Identification of a New Commercial Sign's Proposed Site) by:

(1) GPS coordinates in latitude and longitude, accurate within 50 feet; or

(2) a sketch or aerial map depicting distances to nearby landmarks.

(g) In addition to the other requirements of this section, an application for an electronic sign must include:

(1) a current copy of the municipality's ordinance that demonstrates the allowance of an electronic sign; and

(2) contact information for a person who is available to be contacted at any time and who is able to turn off the electronic sign promptly if a malfunction occurs or is able to accommodate an emergency notification request from a local authority under §21.258 of this subchapter (relating to Emergency Information).

(h) If the only issue preventing the issuance of a permit is a spacing conflict with another permitted sign owned by the applicant, the department will send a notice to the applicant informing the applicant of the conflicting sign. The department will deny the application unless the applicant, before the 30th day after the date that the department sends notice under this subsection, to provide the department with proof of the removal of the conflicting sign.

§21.160.Applicant's Identification of a New Commercial Sign's Proposed Site.

(a) An applicant for a new permit must identify the proposed site of the sign on the parcel number indicated in the application by setting a stake or marking the concrete at the proposed location of the center pole of the sign structure.

(b) At least two feet of the stake must be visible above the ground. The stake or the mark must be distinguished from any other stake or mark at the location.

(c) A stake or mark on the concrete may not be moved or removed until the application is denied or if approved, until the sign has been erected.

§21.161.Site Owner's Consent; Withdrawal.

A site owner's consent to the erection and maintenance of a commercial sign and access to the site by the department or its agent is provided with the filing of a permit application under §21.159 of this subchapter (relating to Permit Application). The consent operates for the life of the lease.

§21.162.Permit Application for Certain Preexisting Commercial Signs.

(a) If a sign was in place before the time that the land on which the sign is located first became subject to Transportation Code, Chapter 391, the owner of the sign must apply for a permit for the sign within 60 days after the date on which the department sends notice by certified mail to the owner that a permit for the sign is required. Failure to obtain a permit as required by the department will result in an order of removal under §21.198 of this subchapter (relating to Order of Removal).

(b) The department may issue a permit with a non-conforming status if the sign was lawfully erected before the roadway became subject to regulation and the conditions of the sign or location do not meet current requirements.

§21.163.Permit Application Review.

(a) The department will consider permit applications in the order of the receipt of completed applications.

(b) If a paper application is rejected because it is not complete, lacks documentation, or has incorrect information, the application loses its priority position. The department will notify the applicant of the reasons the application was rejected.

(c) The department will hold an application that is for the same site as or a conflicting site with that of an application that the department previously received until the department makes a final decision on the previously received application. The department will notify the applicant that the applicant's application is being held because an application for the same or a conflicting site was previously received. For the purposes of this subsection, the date of a final decision on an application is:

(1) the date of the final decision on an appeal under §21.170 of this subchapter (relating to Appeal Process for Permit Denials); or

(2) if an appeal is not filed within the period provided by §21.170 of this subchapter, on the 46th day after the date the denial notice was received under §21.164 of this subchapter (relating to Decision on Application).

(d) The department will review the permit application for completeness, correctness, and compliance with all requirements of this subchapter. Measurements will be taken at the site to determine if the sign placement meets the spacing and location requirements.

§21.164.Decision on Application.

(a) The department will make a decision on an application within 60 days after the date of receipt of the application. If the decision cannot be made within the 60 day period, the department will notify the applicant of the delay and provide the reason for the delay and provide an estimate for when the decision will be made.

(b) If the permit application is approved, the department will issue a permit for the sign.

(c) If the permit application is not approved, the department will send to the applicant a notice that states the reason for the denial.

§21.166.Commercial Sign Location Requirements.

(a) The department will not issue a permit under this subchapter unless the sign for which application is made is located along a roadway to which Transportation Code, Chapter 391, applies and is in:

(1) an unzoned commercial, governmental, or industrial area; or

(2) a zoned commercial or industrial area.

(b) Subsection (a) of this section does not apply to a commercial sign that was lawfully in existence when it became subject to Transportation Code, Chapter 391.

(c) The department, in its discretion, may refuse to issue a permit or approve an application for an amended permit if the location of the sign is within the corridor of a section of highway that has received environmental clearance, but for which the construction contract has not been awarded.

(d) An electronic sign may be located, relocated, or upgraded only along a regulated highway and within:

(1) the corporate limits of a municipality that allows electronic signs under its sign or zoning ordinance; or

(2) the extraterritorial jurisdiction of a municipality described by paragraph (1) of this subsection that under state law has extended its municipal regulation to include and allow electronic signs in that area.

(e) An electronic sign may not be located within 1,500 feet of another electronic sign on the same highway if facing the same direction of travel, or if the sign will be located in a political subdivision that is authorized to exercise control under §21.200 of this subchapter (relating to Local Control of Commercial Signs) the sign spacing must comply with the Texas Federal and State Agreement on Highway Beautification.

§21.167.Erection and Maintenance from Private Property.

(a) The department will not issue a permit for a commercial sign unless it can be erected and maintained from private property.

(b) If the department finds sufficient evidence that the license holder destroyed vegetation on the right of way for a proposed sign site, the permit application will be denied.

§21.168.Conversion of Certain Authorization to Permit.

(a) The department will convert a commercial sign registration issued under §21.409 of this chapter (relating to Permit Application) or a permit issued under §21.407 of this chapter (relating to Existing Off-Premise Signs) to a commercial sign permit under this subchapter if a highway previously regulated under Transportation Code, Chapter 394 becomes subject to Transportation Code, Chapter 391.

(b) A holder of a permit or registration converted under this section is not required to pay an original permit fee under §21.175 of this subchapter (relating to Permit Fees). The permit must be renewed under §21.172 of this subchapter (relating to Permit Renewals), on the date the renewal of the permit or registration issued under §21.407 or §21.409 of this chapter, as appropriate, would have been due.

(c) If a commercial sign owner has prepaid registration fees under §21.407 of this chapter, the outstanding balance will be credited to the sign owner's annual renewal fee.

§21.169.Notice of Commercial Sign Becoming Subject to Regulation.

(a) The department will send notice by certified mail to the owner of a commercial sign that becomes subject to Transportation Code, Chapter 391. If the owner of the sign cannot be identified from the information on file with the department, the department will give notice to the landowner of record.

(b) If the owner of a commercial sign described by subsection (a) of this section does not hold a license issued under §21.153 of this subchapter (relating to License Issuance) or §21.450 of this chapter (relating to License Issuance), the owner must obtain the license within 60 days after the day that the department sends notice under subsection (a) of this section.

(c) The sign owner must apply for a permit in accordance with §21.159 of this subchapter (relating to Permit Application) within 60 days after the later of the date of receipt of the notice under subsection (a) of this section or the date of the issuance of the license in accordance with subsection (b) of this section.

(d) If the sign owner fails to obtain a permit as required by the department or if the sign owner cannot be determined or located, the landowner will be required to remove the sign structure in accordance with §21.198 of this subchapter (relating to Order of Removal).

§21.170.Appeal Process for Permit Denials.

(a) If a commercial sign permit is denied, the applicant may file a request for an appeal with the executive director through the Right of Way Division.

(b) The request for appeal must be written and sent:

(1) electronically at ROW_outdooradvertising@txdot.gov; or

(2) by mail to: P.O. Box 5075, Austin, Texas 78704-5075, attention "Highway Beautification Section."

(c) The request must

(1) contain a statement of why the denial is believed to be in error;

(2) provide evidence that supports the issuance of the permit, such as documents, drawings, surveys, or photographs; and

(3) be received within 45 days after the date the denial notice was received.

(d) The executive director or the executive director's designee who is not below the level of assistant executive director, will make a final determination on the appeal within 60 days after the date that the executive director receives the request for appeal. If the final determination is that the permit is denied, the executive director or the executive director's designee will send the final determination to the applicant stating the reason for denial. If the determination is that the application be approved, the department will issue the permit in accordance with §21.164 of this subchapter (relating to Decision on Application).

§21.171.Permit Expiration.

(a) A permit is valid for one year.

(b) A permit automatically expires on the date that the license under which the permit was issued expires or is revoked by the department under §21.158 of this subchapter (relating to License Revocation).

§21.172.Permit Renewals.

(a) To be continued in effect, a sign permit must be renewed annually on or before its expiration date.

(b) A permit is eligible for renewal if the sign for which it was issued continues to meet all applicable requirements of this division and Transportation Code, Chapter 391.

(c) To renew the permit, the permit holder must file with the department a renewal application in a form prescribed by the department accompanied by the applicable fees prescribed by §21.175 of this subchapter (relating to Permit Fees). The application with all applicable fees must be received by the department before the 46th day after the date of the permit's expiration.

(d) The department will provide a renewal notification to the license holder of record at least 30 days before the date of the permit expiration. If the permit is not renewed on or before its expiration date, the department will provide notification to the license holder of the opportunity to file a late renewal with all applicable fees.

(e) The department will inspect the sign site and the sign structure on or after the first anniversary of the date of the permit's issuance for compliance with applicable law, including regulations. A permit will be renewed only if the sign structure has been erected. The department will confirm private access to the sign site and will conform the renewed permit to the actual configuration and location of the sign as built in accordance with all applicable rules.

(f) The documentation and fees required under this section must be sent to: Texas Department of Transportation, Highway Beautification Section, P.O. Box 13043, Austin, Texas 78711-3043 or submitted to the department electronically through a process established by the department.

(g) By filing a renewal application, the sign owner is asserting to the department that the sign meets all applicable requirements of this subchapter. Renewal of a permit does not indicate that the department has determined that the sign is in compliance with applicable regulations.

§21.173.Transfer of Permit.

(a) A sign permit may be transferred only with the written approval of the department.

(b) At the time of the transfer, both the transferor and the transferee must hold a valid license issued under §21.153 of this subchapter (relating to License Issuance) or §21.450 of this chapter (relating to License Issuance), except as provided in subsections (e) - (g) of this section.

(c) The permit holder must send to the department a request to transfer a sign permit in a form prescribed by the department accompanied by the applicable fees prescribed by §21.175 of this subchapter (relating to Permit Fees). The request may be submitted online or in writing.

(d) If the request is submitted in writing and is approved, the department will send to the transferor and to the transferee a copy of the approved permit transfer form.

(e) If the request is submitted electronically, the department will send the request to the transferor for affirmation, If affirmed by transferor, the department will notify the transferee to submit applicable fees required under subsection (c) of this section. After the fee is received, the department will confirm the completed permit transfer to the transferor and transferee electronically.

(f) The department may approve the transfer of one or more commercial sign permits from a transferor to a person who holds a license, with or without the signature of the transferor, if the person provides to the department:

(1) legal documents showing the sign has been sold;

(2) documents that indicate that the transferor is dead or cannot be located; or

(3) a court order demonstrating the new ownership of the sign permit.

(g) The department will not approve the transfer if cancellation of the permit is pending or has been abated awaiting the outcome of an administrative hearing.

(h) The department will approve a transfer only if the permit is valid.

(i) The documentation and fees required under this section must be sent to: Texas Department of Transportation, Highway Beautification Section, P.O. Box 13043, Austin, Texas 78711-3043 or submitted to the department electronically through the process established by the department.

§21.174.Amended Permit.

(a) To perform customary maintenance or to make substantial changes to a commercial sign under §21.191 of this subchapter (relating to Repair and Maintenance of Commercial Signs) a permit holder must obtain an amended permit before initiating any action to the sign structure. To change the sign face of an existing permitted sign to an electronic sign under this subchapter, a permit holder must obtain an amended permit.

(b) To obtain an amended permit, the permit holder must submit an amended permit application on a form prescribed by the department. The amended permit application must provide the information required under §21.159 of this subchapter (relating to Permit Application) applicable to an amended permit and indicates the change from the information in the sign permit.

(c) The new sign face size, configuration, height, or lighting, must meet all applicable requirements of this subchapter.

(d) The holder of a permit for a nonconforming sign may apply for an amended permit to perform eligible customary maintenance under §21.191(b) of this subchapter. An amended permit will not be issued for a substantial change as described by §21.191(c) of this subchapter to a nonconforming sign.

(e) Making a change to a sign, except as provided by subsection (h) of this section, without first obtaining an amended permit is a violation of this subchapter and will result in an administrative enforcement action.

(f) The department will make a decision on an amended permit application within 60 days of the date of the receipt of the amended permit application. If the decision cannot be made within the 60 day period the department will notify the applicant of the delay, provide the reason for the delay and provide an estimate of when the decision will be made.

(g) If an amended permit application is denied, the applicant may file a request with the executive director for an appeal using the same procedures found in §21.170 of this subchapter (relating to Appeal Process for Permit Denials).

(h) If maintenance or changes authorized under this section are being made on a conforming sign because of a natural disaster, on request the department may waive the requirement that the required amended permit be issued before the work begins. If the department grants a waiver under this subsection, the permit holder shall submit the amended permit application within 60 days after the date that the work is completed. If the maintenance or changes violate this section or the permit holder fails to submit the amended permit application as required by this subsection, the sign is subject to enforcement and removal actions.

(i) An amended permit is valid for one year after the date of the department's approval of the amended permit application. If any of the changes approved in the amended permit application are not completed within one year after the date of the department's approval, the license holder must reapply to make those changes and must pay the prescribed fee. The provisions of this subchapter relating to a permit apply to the amended permit. The date of the department's approval of the amended permit application is considered to be the amended permit's date of issuance.

(j) The documentation and fee required under this section must be sent to: Texas Department of Transportation, Highway Beautification Section, P.O. Box 13043, Austin, Texas 78711-3043 or submitted to the department electronically through the process established by the department.

(k) An amended application will not be approved to change the location of a permitted sign structure.

(l) A conforming commercial sign may be modified to be an electronic sign only if an amended permit for the electronic sign is obtained from the department.

§21.175.Permit Fees.

(a) The amounts of the fees related to permits under this subchapter are:

(1) $100 for an original or amended permit for a sign;

(2) $100 for an original permit for a sign that was lawfully in existence when the sign became subject to Transportation Code, Chapter 391;

(3) $75 for the renewal of a permit; and

(4) $25 for the transfer of a permit.

(b) In addition to the $75 annual renewal fee, an additional late fee of $100 is required for a renewal of a permit if the renewal application is received by the department after the permit expiration date but before the 46th day after the permit expiration date.

(c) A fee prescribed by this section is payable by credit card, check, cashier's check, or money order. If payment is dishonored upon presentment, the permit, renewal, amended permit, or transfer is void.

§21.176.Cancellation of Permit.

(a) The department will cancel a permit for a commercial sign if the sign:

(1) is removed, unless the sign is removed and re-erected at the request of a condemning authority;

(2) is not maintained in accordance with this subchapter or Transportation Code, Chapter 391;

(3) is damaged beyond repair, as determined under §21.197 of this subchapter (relating to Discontinuance of Nonconforming Commercial Sign Due to Destruction);

(4) is abandoned, as determined under §21.181 of this subchapter (relating to Abandonment of Sign);

(5) has substantial changes made to a non-conforming sign in violation of this subchapter or Transportation Code, Chapter 391;

(6) is built by an applicant who uses false information on a material issue of the permit application;

(7) is erected, repaired, or maintained in violation of §21.199 of this subchapter (relating to Destruction of Vegetation and Access from Right of Way Prohibited);

(8) has been made more visible by the permit holder clearing vegetation from the highway right of way in violation of §21.199 of this subchapter;

(9) is located in an unzoned commercial or industrial area and the department has evidence that an activity supporting the unzoned commercial or industrial area was created primarily or exclusively to qualify the area as an unzoned commercial or industrial area; or

(10) is accessed, erected, repaired, or maintained from the right of way.

(b) The department will cancel a permit for a commercial sign if the sign owner:

(1) fails to cure a violation in accordance with §21.205 of this subchapter, (relating to Curable Commercial Sign Permit Violations); or

(2) fails to pay an administrative penalty under §21.204 of this subchapter, (relating to Administrative Penalties for Commercial Signs).

(c) Upon determination that a permit should be canceled, the department will mail a notice of cancellation to the address of the record permit holder. The notice must state:

(1) the reason for the cancellation;

(2) the effective date of the cancellation;

(3) the right of the permit holder to request an administrative hearing on the cancellation; and

(4) the procedure for requesting a hearing and the period for filing the request.

(d) A request for an administrative hearing under this section must be in writing and delivered to the department within 45 days after the date that the notice of cancellation is received.

(e) If timely requested, an administrative hearing will be conducted in accordance with Chapter 1, Subchapter E of this title (relating to Procedures in Contested Case) and the cancellation is abated until the cancellation is affirmed by order of the commission.

(f) A permit holder may voluntarily cancel a permit by submitting a request in writing after the sign has been removed. Subsections (c)-(e) of this section do not apply to a permit voluntarily canceled under this subsection.

§21.177.Commercial or Industrial Area.

For the purposes of this subchapter, a commercial or industrial area is:

(1) a zoned commercial or industrial area described by §21.178 of this subchapter (relating to Zoned Commercial or Industrial Area); or

(2) an unzoned commercial or industrial area described by §21.179 of this subchapter (relating to Unzoned Commercial or Industrial Area).

§21.178.Zoned Commercial or Industrial Area.

A zoned commercial or industrial area is an area that is designated, through a comprehensive zoning action, for general commercial or industrial use by a political subdivision with legal authority to zone regardless of the specific label used by the zoning authority. An area is not considered a zoned commercial or industrial area for regulatory purposes if it:

(1) is a small parcel or narrow strip of land that cannot be put to ordinary commercial or industrial use, as described in §21.180;

(2) is designated for a use classification that is not commercial or industrial in nature; or

(3) has no actual development of the property for commercial or industrial activity, as described in §21.180, other than specifically sign-related infrastructure.

§21.179.Unzoned Commercial or Industrial Area.

(a) An unzoned commercial or industrial area is an area that:

(1) is within 800 feet, measured from the nearest point along the edge of the highway right of way perpendicular to the centerline of the main-traveled way, of and on the same side of the highway as the principal part of at least two adjacent recognized governmental, commercial, or industrial activities that meet the requirements of subsection (c) of this section;

(2) is not predominantly used for residential purposes; and

(3) has not been zoned under authority of law.

(b) A part of the regularly used buildings, parking lots, or storage or processing areas of each of the governmental, commercial, or industrial activities must be within 200 feet of the highway right of way and a portion of the permanent building in which the activity is conducted must be visible from the main-traveled way.

(c) For governmental, commercial, or industrial activities to be considered adjacent for the purposes of subsection (a)(1) of this section, the regularly used buildings, parking lots, storage or processing areas of the activities may not be separated by:

(1) a public road, or a street; or

(2) more than 50 feet of:

(A) vacant lot;

(B) undeveloped area; or

(C) a non-governmental, non-commercial, or non-industrial area.

(d) Two activities that occupy the same building qualify as adjacent activities for the purposes of subsection (a)(1) of this section, if:

(1) each activity:

(A) has at least 400 square feet of floor space dedicated to that activity; and

(B) is an activity that is customarily allowed only in a zoned commercial or industrial area;

(2) the two activities are separated by a dividing wall constructed from floor to ceiling;

(3) the two activities have access to the restroom facilities during all hours the activity is staffed or opened; and

(4) the two activities operate independently of one another.

(e) For the purposes of subsection (d) of this section, two separate product lines offered by one business are not considered to be two activities.

(f) To determine whether an area is not predominantly used for residential purposes under subsection (a)(2) of this section, not more than 50 percent of the area, considered as a whole, may be used for residential purposes. A road or street is considered to be used for residential purposes only if residential property is located on both of its sides. The area to be considered is the total of actual or projected frontage of the commercial or industrial activities plus 800 feet on each side of that frontage, measured along the highway right of way to a depth of 660 feet. The depth of an unzoned commercial or industrial area is measured from the nearest edge of the highway right of way perpendicular to the centerline of the main-traveled way of the highway.

(g) The length of an unzoned commercial or industrial area is measured from the outer edge of the regularly used building, parking lot, storage, or processing area of the commercial or industrial activity and along or parallel to the edge of the pavement of the highway. If the business activity does not front the highway, a projected frontage is measured from the outer edge of the regularly used building, parking lot, storage, or processing area to a point perpendicular to the centerline of the main-traveled way.

(h) A sign is not required to meet the requirements of subsection (d)(1)(A), (2), or (3) of this section or §21.180 of this subchapter (relating to Commercial or Industrial Activity) to maintain conforming status if the permit for the sign was issued before the effective date of this section.

§21.180.Commercial or Industrial Activity.

(a) For the purposes of this subchapter, a governmental, commercial or industrial activity is an activity that:

(1) is customarily allowed only in a zoned commercial or industrial area; and

(2) is conducted in a permanent building or structure permanently affixed to the real property that:

(A) has an indoor restroom, running water, functioning electrical connections, and permanent flooring, other than dirt, gravel, or sand;

(B) is visible from the traffic lanes of the main-traveled way;

(C) is not primarily used as a residence; and

(D) has at least 400 square feet of its interior floor space devoted to the activity.

(b) For the purposes of this subchapter, a building or structure is considered permanently affixed if:

(1) it has an attached septic field or is part of a sewer system, or is considered to be real property by the county appraisal district; or

(2) all of the following requirements are met:

(A) it has no wheels attached;

(B) it does not have a towing device, such as hitch or tongue; and

(C) it has anchoring straps or cables affixed to the ground using pier footing.

(c) The following are not commercial or industrial activities:

(1) agricultural, forestry, ranching, grazing, farming, and related activities, including the operation of a temporary wayside fresh produce stand;

(2) an activity that is conducted only seasonally;

(3) an activity that has not been conducted at its present location for at least 180 days;

(4) an activity that is not conducted by at least one person at the activity site, and that is not operated for at least 30 hours per week and on at least four days per week;

(5) the operation or maintenance of:

(A) a commercial sign;

(B) a public space other than the related activities conducted in a building or structure that meets the requirements of subsection (a)(2) of this section and the parking facilities for that building or structure;

(C) an apartment house or residential condominium;

(D) a public or private preschool, secondary school, college, or university, other than a trade school or corporate training campus;

(E) a quarry or borrow pit, other than the related activities conducted in a building or structure that meets the requirements of subsection (a)(2) of this section and the parking facilities for that building or structure;

(F) a cemetery; or

(G) a place that is primarily used for worship;

(6) an activity that is conducted on a railroad right of way; and

(7) an activity that is created primarily or exclusively to qualify an area as an unzoned commercial or industrial area.

(d) For the purposes of this section, a building is not primarily used as a residence if more than 50 percent of the building's square footage is used solely for the business activity.

(e) A sign is not required to meet the requirements of subsection (a)(2)(C) (as clarified by subsection (d) of this section), (a)(2)(D), (c)(3), or (c)(4) of this section to maintain conforming status if the permit for the sign was issued before the effective date of this section.

§21.181.Abandonment of Sign.

(a) The department may consider a sign abandoned and cancel the sign's permit if:

(1) all sign faces are blank or without legible content;

(2) the sign structure needs more than customary maintenance to be repaired; or

(3) the sign structure is overgrown by trees or other vegetation.

(b) The department will not consider the payment of property taxes or the retention of a sign as a balance sheet asset in determining whether the sign permit should be canceled under this section.

§21.182.Commercial Sign Face Size and Positioning.

(a) A sign face may not exceed:

(1) 672 square feet in area;

(2) 25 feet in height; and

(3) 60 feet in length.

(b) For the purposes of this section, border and trim are included as part of the sign face, and the base, apron, supports, and other structural members, are excluded as part of the sign face.

(c) Notwithstanding the area limitation provided by subsection (a)(1) of this section, one or more temporary protrusions may be added to a sign, provided that the sign face, including the protrusions, meets the height and length limitations of subsection (a) of this section and:

(1) the area of a protrusion is located exclusively inside of the sign face border and trim; or

(2) the area of the protrusion is outside of the sign face border and trim, as indicated on the sign permit, and does not exceed 10 percent of the permitted area.

(d) Except as provided in subsection (g) of this section, a sign may have two or more sign faces that are placed back-to-back, side-by-side, stacked, or in "V" type construction with not more than two faces presented in each direction. If such an arrangement is used, the sign structure or structures are considered to be one sign for all purposes. Two sign faces which together exceed 700 square feet in area may not face in the same direction.

(e) Two sign faces that face in the same 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.

(f) A sign may not have a moveable protrusion unless authorized under this subchapter (relating to Electronic Signs).

(g) Two electronic sign faces may be located on the same sign structure if each sign face is visible only from a different direction of travel.

§21.184.Location of Commercial Signs Near Public Spaces.

(a) The center of a sign may not be located within 250 feet of the nearest point of the boundary of a public space.

(b) This subsection applies only if a public space boundary abuts the right of way of a regulated highway. A sign may not be located within 1,500 feet of the boundary of the public space, as measured along the right of way line from the nearest common point of the space's boundary and the right of way. This limitation applies:

(1) on both sides of a highway that is on a nonfreeway primary system; or

(2) on the side of a highway on which the public space is located, if the highway is on an interstate or freeway primary system.

§21.185.Location of Commercial Signs Near Certain Facilities.

(a) A sign may not be erected along a freeway or interstate regulated highway that is outside an incorporated municipality in an area that is adjacent to or within 1,000 feet of:

(1) an interchange or intersection at grade; or

(2) a rest area, ramp, or the highway's acceleration and deceleration lanes.

(b) The distance from a ramp or acceleration or deceleration lane is measured from the point of the pavement widening at the beginning of the entrance or exit ramp and from the point that the pavement widening ends at the conclusion of the entrance or exit ramp.

(c) The distance from a rest area is measured along the right of way line from the outer edges of the rest area boundary abutting the right of way.

(d) An area is adjacent to a rest area or a highway's acceleration or deceleration lane if the area is between the point of the highway widening at the beginning of the entrance or exit ramp and the point that pavement widening ends at the conclusion of the entrance or exit ramp.

(e) All measurements are taken from a point perpendicular to the highway and along the highway right or way.

§21.186.Location of Commercial Signs Near State Right of Way.

A sign may not be erected so that the part of the sign face nearest a highway is within five feet of the highway's right of way line.

§21.187.Spacing of Commercial Signs.

(a) Permitted signs on the same side of a regulated freeway, including freeway frontage roads, may not be erected closer than 1,500 feet apart.

(b) For a highway on a non-freeway primary system and outside the incorporated boundaries of a municipality, permitted signs on the same side of the highway may not be erected closer than 750 feet apart.

(c) For a highway on a non-freeway primary system highway and within the incorporated boundaries of a municipality, permitted signs on the same side of the highway may not be erected closer than 300 feet apart.

(d) A permitted sign that is located within the incorporated boundaries of a certified city on a highway on a freeway primary system may not be closer than:

(1) 1,500 feet to another sign that is on the same side of the highway and outside the incorporated boundaries of a municipality; or

(2) 500 feet to another sign that is on the same side of the highway and inside the incorporated boundaries of a municipality.

(e) A permitted sign that is located within the incorporated boundaries of a municipality on a highway that is on a non-freeway primary system may not be closer than:

(1) 750 feet to another sign that is on the same side of the highway and outside the incorporated boundaries of a municipality; or

(2) 300 feet to another sign that is on the same side of the highway and inside the incorporated boundaries of a municipality.

(f) For the purposes of this section, the space between commercial signs is measured between points along the right of way of the highway perpendicular to the center of the signs.

(g) For the purposes of this section, a municipality's extraterritorial jurisdiction is not considered to be included within the boundaries of the municipality.

(h) The spacing requirements of this section do not apply to commercial signs separated by buildings, natural surroundings, or other obstructions in a manner that causes only one of the signs to be visible within the specified spacing area.

(i) A permitted sign may not be erected within five feet of the highway right of way line. The distance shall be measured from the end of the sign face nearest the right of way line.

(j) A permitted sign that is being displaced by a highway construction project will not be considered in determining the spacing for a new sign application.

§21.188.Wind Load Pressure.

An application for new commercial sign permit or a permit renewal must include a certification by the applicant that the proposed or existing sign will withstand wind load pressures in pounds per square foot as set out in the following table.

Figure: 43 TAC §21.188 (.pdf)

§21.189.Commercial Sign Height Restrictions.

(a) Except as provided by this subsection and subsections (f) and (g) of this section, a commercial sign may not be erected that exceeds an overall height of 42-1/2 feet. If the legislature does not establish a maximum overall height of commercial signs before September 3, 2019, effective September 3, 2019, a commercial sign may not be erected that exceeds an overall height of 85 feet.

(b) A roof sign that has a solid sign face surface may not at any point exceed 24 feet above the roof level.

(c) A roof sign that has an open sign face in which the uniform open area between individual letter or shapes is not less than 40 percent of the total gross area of the sign face may not at any point exceed 40 feet above the roof level.

(d) The lowest point of a projecting roof sign or a wall sign must be at least 14 feet above grade.

(e) For the purposes of this section, height is measured from the department's determination of grade level of the centerline of the main-traveled way closest to the sign face, at a point perpendicular to the sign location. A frontage road of a controlled access highway or freeway is not considered the main-traveled way for purposes of this subsection. In the event that the main-traveled way that is perpendicular to the sign structure is below grade, sign height will be measured from the base of the sign structure.

(f) The height measurement does not include any renewable energy device such as solar panels or wind turbines that are attached to the sign structure above the sign face to improve the energy efficiency of the sign structure.

(g) In accordance with Transportation Code, Section 391.038, a sign that existed on March 1, 2017, and that satisfies the requirements of Section 391.038, may be rebuilt, without obtaining a new or amended permit from the department, at the location where the sign existed on March 1, 2017, and at a height that does not exceed the height of the sign on that date. A sign structure described by this subsection must otherwise comply with this subchapter.

§21.190.Lighting of and Movement on Commercial Signs.

(a) Other than a sign permitted as an electronic sign, a sign may not contain or be illuminated by flashing, intermittent, or moving lights, including any type of screen using animated or scrolling displays.

(b) A conforming sign may be illuminated but only by:

(1) upward lighting of no more than 4 luminaires per direction of the sign face or faces of the structure; or

(2) downward lighting of no more than 4 luminaires per direction of the sign face or faces of the structure.

(c) Lights that are a part of or illuminate a sign:

(1) must be shielded, directed, and positioned to prevent beams or rays of light from being directed at any portion of the traveled ways of a regulated highway;

(2) may not be of such intensity or brilliance as to cause vision impairment of a driver of any motor vehicle on a regulated highway or otherwise interfere with the driver's operation of a motor vehicle; and

(3) may not obscure or interfere with the effectiveness of an official traffic sign, device, or signal.

(d) A temporary protrusion may not be illuminated by flashing or moving lights or enhanced by reflective material that creates the illusion of flashing or moving lights.

(e) Reflective paint or reflective disks may be used on a sign face only if the paint or disks do not:

(1) create the illusion of flashing or moving lights; or

(2) cause an undue distraction to the traveling public.

(f) A neon light may be used on a sign face only if:

(1) the light does not flash;

(2) the light does not cause an undue distraction to the traveling public; and

(3) the permit for the sign specifies that the sign is an illuminated sign.

(g) This subchapter does not prohibit a temporary protrusion area of the sign face that displays only numerical characters and that satisfies this subsection and the requirements of §21.182 of this subchapter (relating to Commercial Sign Face Size and Positioning). An electronic sign may contain a temporary protrusion described by this subsection. The display on the temporary protrusion may be a digital or other electronic display, but if so:

(1) it must consist of a stationary image;

(2) it may not change more frequently than four times in any 24 hour period; and

(3) the process of any change of display must be completed within two minutes.

(h) If the department finds that an electronic sign causes glare or otherwise impairs the vision of the driver of a motor vehicle or otherwise interferes with the operation of a motor vehicle, the owner of the sign, within 12 hours of a request by the department, shall reduce the intensity of the sign to a level acceptable to the department.

§21.191.Repair and Maintenance of Commercial Signs.

(a) The following are considered to be routine maintenance activities that do not require an amended permit:

(1) the replacement of nuts and bolts;

(2) nailing, riveting, or welding;

(3) cleaning and painting;

(4) manipulation of the sign structure to level or plumb it;

(5) changing of the advertising message;

(6) the replacement of minor parts if the materials of the minor parts are the same type as those being replaced and the basic design or structure of the sign is not altered;

(7) changing all or part of the sign structure but only if materials similar to those of the sign structure being replaced are used; and

(8) upgrading existing lighting for an energy efficient lighting system.

(b) Except as allowed by Transportation Code, §391.038, the following are considered to be customary maintenance activities that may be made but require an amended permit before the initiation of such an activity:

(1) replacement of poles, but only if not more than one-half of the total number of poles of the sign structure are replaced in any 12 month period and the same material is used for the replacement poles; and

(2) adding a catwalk to the sign structure.

(c) The following are examples of substantial changes that may be made but require an amended permit before the initiation of such an activity:

(1) adding lights to an un-illuminated sign or adding additional lights or adding more intense lighting to an illuminated sign whether or not the lights are attached to the sign structure;

(2) changing the number of poles in the sign structure;

(3) adding permanent bracing wires, guy wires, or other reinforcing devices;

(4) changing the material used in the construction of the sign structure, such as replacing wooden material with metal material;

(5) adding faces to a sign or changing the sign configuration;

(6) increasing the height of the sign;

(7) changing the configuration of the sign structure, such as changing a "V" sign to a stacked or back to back sign, or a single face sign to a back-to back sign; and

(8) moving the sign structure or sign face in any way unless the movement is made in accordance with §21.192 of this subchapter (relating to Permit for Relocation of Sign).

(d) To add a catwalk to a sign structure the catwalk must meet Occupational Safety and Health Administration guidelines.

§21.192.Permit for Relocation of a Commercial Sign.

(a) A commercial sign that has been timely removed from a department construction project site may be relocated in accordance with this section, §21.193 of this subchapter (relating to Location of Relocated Commercial Sign) and §21.195 of this subchapter (relating to Relocation of Sign within a Certified City) if the sign is legally erected and maintained and will be within the highway right of way as a result of a highway construction project or, under exceptional circumstances as determined by the executive director or the executive director's deputy if the sign is legally erected and maintained and the relocation will further the intended purposes of the Highway Beautification Act of 1965 (23 U.S.C. §§131, 136, 319).

(b) To relocate a sign under this section, the permit holder must obtain a new permit under §21.164 of this subchapter (relating to Decision on Application).

(c) To receive a new permit to relocate a sign under this section, the permit holder must submit a new permit application that identifies that the application is for the relocation of an existing sign due to a highway construction project. The new location must meet all local codes, ordinances, and applicable laws.

(d) Notwithstanding other provisions of this section, if only a part of a sign will be located within the highway right of way as a result of the construction project, the sign owner may apply to amend the existing permit for the sign to authorize:

(1) the adjustment of the sign face on a monopole sign that would overhang the proposed right of way and the required five foot setback from that location to the land on which the sign's pole is located, including adding a second pole if required to support the adjustment for a legal non-conforming monopole sign;

(2) the relocation of the poles and sign face of a multiple sign structure that is located in the proposed right of way from the proposed right of way and the required five-foot setback to the land on which the other poles of the sign structure are located; or

(3) a reduction in the size of a sign structure that is located partially in the proposed right of way and the required five-foot setback so that the sign structure and sign face are removed from the proposed right of way and the required five-foot setback.

(e) A permit application for the relocation of a sign must be submitted within 48 months after the earlier of the date the original sign was removed or the date the original sign was required to move. The sign owner is required to continue to renew the sign permit and pay the permit renewal fee for the sign to remain eligible for relocation. The relocation permit issued must be maintained in accordance with §21.172 of this subchapter (relating to Permit Renewals).

(f) To replace an issued and active relocation permit, an operator first must cancel the permit, then must reapply, pay the fee prescribed by §21.175 of this subchapter (relating to Permit Fees), and obtain approval for the new permit in accordance with subsection (a) of this section. The relocation process must be completed within the time requirements of subsection (e)of this section.

§21.193.Location of Relocated Commercial Sign.

(a) The location of the relocated sign must be within a zoned commercial or industrial area as described by §21.178 of this subchapter (relating to Zoned Commercial or Industrial Area) or an unzoned commercial or industrial area, as described by §21.179 of this subchapter (relating to Unzoned Commercial or Industrial Area) except that an unzoned commercial or industrial area may include only one recognized commercial or industrial activity.

(b) A sign may not be relocated to a place that is:

(1) within 500 feet of a public space that is adjacent to a regulated highway, with the limitation provided under this paragraph applying:

(A) on either side of a regulated highway that is on a nonfreeway primary system; or

(B) on the side of the highway adjacent to the public space if the regulated highway is on an interstate or freeway primary system;

(2) if outside of an incorporated municipality along a regulated highway, adjacent to or within 500 feet of:

(A) an interchange, intersection at grade, or rest area; or

(B) a ramp or the ramp's acceleration or deceleration lane;

(3) for a highway on the interstate or freeway primary system, closer than 500 feet to another permitted sign on the same side of the highway;

(4) for a highway on the nonfreeway primary system and outside of a municipality, closer than 300 feet to another permitted sign on the same side of the highway;

(5) for a highway on the nonfreeway primary system and within the incorporated boundaries of a municipality, closer than 100 feet to another permitted sign on the same side of the highway; or

(6) within five feet of any highway right of way line.

(c) A sign, at the time of and after its relocation, must be within 800 feet of at least one recognized governmental, commercial, or industrial activity that is located on the same side of the highway.

(d) A sign may not be relocated from a road regulated under this subchapter to a rural road regulated by Subchapter K of this chapter (relating to Control of Signs along Rural Roads).

(e) A relocated sign may not be erected or maintained in a location that violates Health and Safety Code, Chapter 752.

§21.195.Relocation of Commercial Sign within Certified Cities.

If an existing sign is located within the incorporated boundaries of a municipality that is approved by the department to control commercial signs under §21.200 of this subchapter (relating to Local Control of Commercial Signs) and the sign will be relocated within the incorporated boundaries of the same municipality, permission to relocate the sign must be obtained only from the municipality in accordance with the municipality's sign and zoning ordinances.

§21.197.Discontinuance of Nonconforming Commercial Sign Due to Destruction.

(a) Except as allowed by Transportation Code, §391.038, if a sign is partially destroyed by a natural force outside the control of the permit holder, including wind, tornado, lightening, flood, fire, or hurricane, the department will determine whether the sign can be repaired without an amended permit.

(b) The department may require the sign owner to submit an estimate of the proposed work, including an itemized list of the materials to be used and the manner in which the work will be done. The department will allow the sign to be repaired without an amended permit if the department determines that the damage is not substantial. If the damage is determined to be substantial the sign owner must obtain an amended permit under §21.174 of this subchapter (relating to Amended Permit).

(c) The department will cancel the existing permit if it determines the damage to the sign is substantial under subsection (g) of this section and an amended permit is not obtained by the sign owner within one year after the date that the department first became aware of the damage.

(d) If a permit is canceled under this section or §21.176 of this subchapter (relating to Cancellation of Permit), the remaining sign structure must be dismantled and removed without cost to the state.

(e) A sign that is totally or partially destroyed by vandalism or a motor vehicle accident may be rebuilt as described on the most recently approved permit application.

(f) If a decision to cancel a permit is appealed, the sign may not be repaired during the appeal process.

(g) Damage is considered to be substantial if the cost to repair the sign would exceed 60 percent of the cost to replace it with a sign of the same basic construction using new materials and at the same location.

(h) If a sign is partially destroyed by a natural force outside the control of the sign owner in an area that receives a state or federal disaster declaration and the sign owner has documentation to show that the sign damage is not considered substantial the sign may be repaired without a prior determination by the department under subsection (b) of this section if the sign is repaired within 180 days after the date of the event and if within 60 days after the date of completion of the repairs, the owner submits to the department:

(1) photos of the partially destroyed sign and the repaired sign; and

(2) a notarized affidavit executed by the sign owner containing:

(A) the permit number of the sign;

(B) a statement that the sign was damaged by the natural force;

(C) a statement that the cost to repair the sign was less than 60 percent of the cost of a new sign with the same basic construction; and

(D) a statement that the sign was repaired in the same configuration and with like materials according to the most recent approved permit.

(i) A sign repaired in violation of this subsection is subject to enforcement and removal.

§21.198.Order of Removal.

(a) If a commercial sign permit expires without renewal, or is canceled or if a sign is erected or maintained in violation of this subchapter, the owner of the sign or, if the department cannot after reasonable effort determine the identity or location of the sign owner, the land owner, on a written demand by the department, shall remove the sign at no cost to the state.

(b) If the sign owner, or land owner, does not remove the sign within 45 days of the day that the demand is sent, the department will remove the sign and will charge the sign owner or land owner, as appropriate, for the cost of removal, including the cost of any court proceedings.

(c) The department will rescind a removal demand if the department determines the demand was issued incorrectly.

§21.199.Destruction of Vegetation and Access from Right of Way Prohibited.

(a) A person may not:

(1) trim or destroy a tree or other vegetation on the right of way for any purpose related to this subchapter; or

(2) erect or maintain a sign from the right of way.

(b) The department will initiate enforcement action if the permit holder, or someone acting on behalf of the permit holder, violates this section.

(c) Subsection (a)(2) of this section does not apply to the maintenance of a sign if:

(1) the state right of way is the only available access for a sign on railroad right of way to which §21.150(b) of this subchapter (relating to Continuance of Nonconforming Signs) applies; and

(2) the sign owner notifies the department and obtains approval of the department before accessing the sign for maintenance.

(d) It is not a violation to trim the portion of the tree or vegetation that encroaches onto private property at the private property line as long as the trimming occurs from the private property.

§21.200.Local Control of Commercial Signs.

(a) The department may authorize a political subdivision, as a certified city, to exercise control over commercial signs in its jurisdiction. If the political subdivision receives approval under this section, it will be listed as a certified city and a permit issued by that political subdivision is acceptable instead of a permit issued by the department within the approved area.

(b) To be considered for authorization under this section, the political subdivision must submit to the department:

(1) a copy of its sign regulations;

(2) a copy of its zoning regulations;

(3) information about the number of personnel who will be dedicated to the program and what type of records will be maintained, including whether the political subdivision maintains an inventory of signs that can be provided to the department in an electronic format that is acceptable to the department; and

(4) an enforcement plan that includes the removal of illegal signs.

(c) The department, after consulting with the Federal Highway Administration, shall determine whether a political subdivision has established and will enforce within its corporate limits standards and criteria for size, lighting, and spacing of commercial signs consistent with the purposes of the Highway Beautification Act of 1965, 23 United States Code §131, and with customary use. The size, lighting, and spacing requirements of the political subdivision may be more or less restrictive than the requirements of this subchapter as long as the requirements comply with the federal requirements, such as the prohibition of signs over 1,200 square feet in size and spacing of less than 500 feet. The authorization does not include the area in a municipality's extraterritorial jurisdiction.

(d) The department may meet with a political subdivision to ensure that it is enforcing the standards and criteria in accordance with subsection (c) of this section.

(e) After approval under this section, the political subdivision shall:

(1) provide to the department:

(A) a copy of each amendment to its sign and zoning regulations when the amendment is proposed and adopted; and

(B) a copy of any change to its corporate limits and its extraterritorial jurisdiction, if covered by the approval;

(2) annually provide to the department:

(A) an electronic copy of the sign inventory; and

(B) report of the number of sign permits issued and the status of all pending enforcement actions; and

(3) participate in at least one video conference or teleconference sponsored by the department each year.

(f) The political subdivision may:

(1) set and retain the fees for issuing a sign permit; and

(2) establish the period for which a sign permit is effective.

(g) The department will conduct an on-site compliance monitoring review every two years.

(h) The department may withdraw the approval of a political subdivision given under this section if the department determines that the political subdivision does not have an effective sign control program. The department will consider whether:

(1) the standards and criteria of political subdivision's sign regulations continue to meet the requirements of subsection (c) of this section;

(2) the political subdivision maintains an accurate sign inventory and annually provides the inventory to the department in an electronic format; and

(3) the political subdivision enforces the sign regulations and annually reports enforcement actions as required.

(i) The department may reinstate a political subdivision's authority on the showing of a new plan that meets the requirements of subsection (c) of this section.

§21.201.Fees Nonrefundable.

A fee paid to the department under this subchapter is nonrefundable.

§21.202.Property Right Not Created.

Issuance of a permit or license under this subchapter does not create a contract or property right in the permit or license holder.

§21.203.Complaint Procedures.

(a) The department will accept and investigate all written complaints on a specific sign structure, sign company, or any other issue under the jurisdiction of the highway beautification program.

(b) The complaints can be filed via the department's website or by mail.

(c) If the complaint involves a sign structure or a sign company the department will notify the owner of the sign structure or sign company of the complaint and the pending investigation within 15 days of receipt of the complaint. This notification will include a copy of the complaint and complaint investigation procedures.

(d) If the complaint included contact information, the department will provide the complainant with a copy of the complaint procedures within 15 days of the receipt of the complaint.

(e) If the complaint involves fewer than 10 sign structures the department will investigate the complaint and make a finding within 30 days of the receipt of the complaint. If the complaint involves 10 or more sign structures or is an investigation of a sign company or any other sign matter the department will make a finding within 90 days of the receipt of the complaint.

(f) If the department is unable to meet the deadlines in subsection (e) of this section, the department will notify the complainant, the sign owner, or sign company of the delay and will provide a date for the completion of the investigation.

(g) The department will provide the complainant, sign owner, or sign company the findings of the investigation, which will include whether administrative enforcement actions are being initiated.

§21.204.Administrative Penalties for Commercial Signs.

(a) The department may impose administrative penalties against a person who intentionally violates Transportation Code, Chapter 391 or this subchapter.

(b) The amount of the administrative penalty may not exceed the maximum amount of a civil penalty that may be imposed under Transportation Code, §391.035 and will based on the following:

(1) $250 for a violation of:

(A) a registration requirement of §21.162 of this subchapter (relating to Permit Application for Certain Preexisting Commercial Signs); or

(B) erecting the sign at a location other than the location identified by stake or paint, except that if the sign location as built does not conform to all other requirements the department will seek cancellation of the permit;

(2) $500 for:

(A) maintaining or repairing the sign from the state right of way; or

(B) performing customary maintenance on any sign or substantial changes on a conforming sign without first obtaining an amended permit as required by §21.191 of this subchapter (relating to Repair and Maintenance of Commercial Signs); or

(3) $1,000 for erecting a sign from the right of way.

(c) In addition to the penalties assessed under subsection (b) of this section, the department may seek to recover the cost of repairing any damage to the right of way done by the sign owner or on the sign owner's behalf.

(d) Upon determination to seek administrative penalties the department will mail a notice of the administrative penalties to the last known address of the permit holder. The notice must clearly state:

(1) the reasons for the administrative penalties;

(2) the amount of the administrative penalty; and

(3) the right of the holder of the permit to request an administrative hearing.

(e) A request for an administrative hearing under this section must be made in writing and delivered to the department within 45 days after the date of the receipt of the notice.

(f) If timely requested, an administrative hearing shall be conducted in accordance with Chapter 1, Subchapter E of this title (relating to Procedures in Contested Case), and the imposition of administrative penalties will be abated unless and until that action is affirmed by order of the commission.

(g) An imposed penalty that is not paid within 60 days of the later of the date of receipt of notice from the department or if an administrative hearing is conducted, the date that the imposition is confirmed, will result in the cancelation of the sign's permit as described in §21.176 of this subchapter (relating to Cancellation of Permit).

§21.205.Curable Commercial Sign Permit Violations.

(a) A permit holder commits a curable violation if the permit holder:

(1) abandons a sign, as determined under §21.181 of this subchapter (relating to Abandonment of Sign);

(2) erects an otherwise conforming sign structure that is not on the parcel of land indicated on the permit;

(3) erects a sign structure at a location that does not meet all spacing requirements of this subchapter or as described in the permit application;

(4) makes customary repairs or substantial changes to a conforming sign without obtaining a required amended permit under §21.174 of this subchapter (relating to Amended Permit);

(5) fails to establish legal access from private property in accordance with §21.167 of this subchapter (relating to Erection and Maintenance from Private Property);

(6) violates any of the provisions of §21.190 of this subchapter (relating to Lighting of and Movement on Commercial Signs); or

(7) violates §21.189 of this subchapter (relating to Commercial Sign Height Restrictions).

(b) The department will notify the permit holder in writing of a violation of this section and will give the permit holder 60 days, beginning on the date of receipt of notice of the violation, to correct the violation, provide proof of the correction, and if required, obtain an amended permit from the department.

(c) Examples of proof of correction of a violation include:

(1) acceptable photographs; and

(2) current survey documentation.

(d) If a permit holder who violates this section fails to correct the violation in accordance with this section, the department will cancel the permit in accordance with §21.176 of this subchapter (relating to Cancellation of Permit).

§21.206.Requirements For An Electronic Sign

(a) On an electronic sign each message must be displayed for at least eight seconds. A change of message must be accomplished within two seconds and must occur simultaneously on the entire sign face.

(b) An electronic sign must:

(1) contain a default mechanism that freezes the sign in one position if a malfunction occurs; and

(2) automatically adjust the intensity of its display according to natural ambient light conditions.

(c) The owner of an electronic sign shall coordinate with local authorities to display, when appropriate, emergency information important to the traveling public, such as Amber Alerts or alerts concerning terrorist attacks or natural disasters. Emergency information messages must remain in the advertising rotation according to the protocols of the agency that issues the information.

(d) The department will share the contact information with the appropriate local authority that has jurisdiction over the location of the electronic sign.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 22, 2018.

TRD-201800732

Joanne Wright

Deputy General Counsel

Texas Department of Transportation

Effective date: March 14, 2018

Proposal publication date: September 15, 2017

For further information, please call: (512) 463-8630


43 TAC §§21.146 - 21.149, 21.151, 21.165, 21.194, 21.196

STATUTORY AUTHORITY

The repeals are adopted under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §391.032, which provides authority to establish rules to regulate the orderly and effective display of commercial signs on primary roads, Transportation Code, §391.0355, which provides authority for the commission to set fees for administrative penalties in association with violation of commercial sign regulations; Transportation Code, §391.065, which provides authority to establish rules to standardize forms and regulate the issuance of commercial sign licenses; and Transportation Code, §391.068, which provides authority for the commission to prescribe permit requirements and set fees for commercial sign permits.

CROSS REFERENCE TO STATUTE

Transportation Code, Chapters 391.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 22, 2018.

TRD-201800733

Joanne Wright

Deputy General Counsel

Texas Department of Transportation

Effective date: March 14, 2018

Proposal publication date: September 15, 2017

For further information, please call: (512) 463-8630


DIVISION 2. ELECTRONIC SIGNS

43 TAC §§21.251 - 21.260

STATUTORY AUTHORITY

The repeals are adopted under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §391.032, which provides authority to establish rules to regulate the orderly and effective display of commercial signs on primary roads, Transportation Code, §391.0355, which provides authority for the commission to set fees for administrative penalties in association with violation of commercial sign regulations; Transportation Code, §391.065, which provides authority to establish rules to standardize forms and regulate the issuance of commercial sign licenses; and Transportation Code, §391.068, which provides authority for the commission to prescribe permit requirements and set fees for commercial sign permits.

CROSS REFERENCE TO STATUTE

Transportation Code, Chapters 391.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 22, 2018.

TRD-201800734

Joanne Wright

Deputy General Counsel

Texas Department of Transportation

Effective date: March 14, 2018

Proposal publication date: September 15, 2017

For further information, please call: (512) 463-8630