The Texas Department of Transportation (department) proposes 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, and §§21.197 - 21.204; and new §21.205 and §21.206, all concerning regulation of signs along Interstate and primary highways.

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.--Austin 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 up to a height of 85 feet, and allows those signs to be maintained at that height without the need of an amended 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.

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.

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.

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 not approve a location that will be within that project's boundaries. The department believes that a project with environmental clearance 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, to Permit, 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, removes 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. 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 Cont'd...