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RULE §22.14Vendors

(a) Purpose. Encroachment on highways and right-of-ways of the state highway system by unauthorized structures and vehicles and by roadside vendors causes damage to the system, increases litter, and frequently creates unsafe or hazardous conditions. This section prescribes the policies and procedures governing use of state highway right-of-way by vendors.

(b) Policy.

  (1) A person may not park or place any vehicle or structure, wholly or partly within the right-of-way of a state highway, for the purpose of selling the same or of selling any article, service, or thing from such vehicle or structure, except as provided in paragraph (2) of this subsection.

  (2) The prohibition described in paragraph (1) of this subsection does not apply to:

    (A) placing, constructing, or maintaining a structure pursuant to other statutory authority;

    (B) an activity undertaken pursuant to the terms of a right-of-way lease entered under the provisions of Texas Civil Statutes, Article 6673a-3;

    (C) the sale of an edible agricultural commodity for a period not to exceed 60 days, within the right-of-way of a state highway other than a controlled access facility, if that commodity was grown or produced upon the property immediately abutting the affected right-of-way; or

    (D) any other activity expressly authorized by law.

(c) Application. A person who desires to engage in an activity, as identified in subsection (b)(2)(C) of this section, must file an application to obtain authorization to sell goods on the right-of-way at the department's district office not fewer than seven calendar days prior to the requested date of placement. The application shall be in a form prescribed by the department and shall at a minimum require:

  (1) the name, address, and telephone number of the person responsible for the request;

  (2) a tax statement or other proof of ownership, leasehold, or written permission from the owner of the property;

  (3) the proposed location of the vehicle or structure (distance from the roadway);

  (4) the size of the encroachment (height, width, and length);

  (5) the proposed time period of the encroachment;

  (6) the commodities being sold; and

  (7) a section reserved to the department which sets forth such other terms and conditions that the department may require.

(d) Use of rights-of-way restrictions.

  (1) Location. The location approved under subsection (e) of this section shall be as far from the edge of the pavement as possible, and may not be in a place:

    (A) where the encroachment may cause sight restriction or a safety problem;

    (B) inside the clear zone as defined in the latest edition of the Department's Design Division Operations and Procedure Manual;

    (C) which will conflict with scheduled maintenance or construction actions;

    (D) which will cause substantial negative impacts to the environment, including landscape features; or

    (E) where customers could park their vehicles in such a way as to create a safety hazard.

  (2) Signs. A person authorized to utilize the right-of-way under this section may not place a sign on the right-of-way, vehicle, or the structure.

(e) Approval. The district engineer or his or her designee will review the application and approve the location, subject to any additional terms and conditions deemed necessary to protect the safety of the traveling public, if the use of right-of-way is in compliance with this section.

(f) Agreement. If the application is approved, the requestor must enter into a written agreement with the department. The agreement will contain terms and conditions the department deems necessary to protect the public safety including, but not limited to:

  (1) the physical description of the encroachment;

  (2) the approved location of the encroachment;

  (3) the approved time period of the encroachment;

  (4) the commodities being sold;

  (5) a statement that the requestor will avoid or minimize impacts, and will, at its own expense, restore or repair damage occurring outside the right-of-way and restore or repair the right-of-way, including roadway and drainage structures, signs, pavement, etc., to a condition equal to that existing before the encroachment, and, to the extent practicable, restore the natural environment, including landscape features;

  (6) a statement that the requestor is responsible for any damages or accidents which may occur during the time period of encroachment and to save the state harmless;

  (7) a statement that the requestor will abide by all applicable federal, state, and local environmental laws, regulations, ordinances, and any conditions or restrictions required by the department to protect the natural and cultural resources of the right-of-way; and

  (8) a statement that if hazardous traffic conditions develop due to the presence of the encroachment, the requestor shall correct the measure as the department requires.

(g) Disapproval. If the request is not approved, the department will provide written notice describing the basis for the determination.

(h) Review. Any decision made by a designee of the district engineer may be reviewed and overruled by the district engineer.

Source Note: The provisions of this §22.14 adopted to be effective March 1, 1995, 20 TexReg 963.

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