Leasing of highway right-of-way shall be subject to the following as deemed applicable by the deputy director.

1. (1) All matters relative to the leasing of highway right-of-way are subject to the approval of FHWA.
2. (2) The use of leased right-of-way beneath the established gradeline of a highway shall provide sufficient vertical and horizontal clearances for the construction, operation, maintenance, ventilation, and safety of highway facilities.
3. (3) The use of leased highway right-of-way above the established gradeline of the highway shall provide for vertical and horizontal clearances.
4. (4) Piers, columns, or any other portion of any improvements to be constructed on the leased right-of-way shall not be erected in a location which will interfere with the visibility or reduce sight distance or in any other way interfere with the safety and free flow of traffic on high facilities.
5. (5) The structural supports for any improvements to be constructed on the leased right-of-way shall be located to clear all horizontal and vertical dimensions specified by design standards of the department.
6. (6) The use of leased right-of-way shall not result in either highway or nonhighway users being unduly exposed to hazardous conditions because of highway location, design, maintenance, and operation.
7. (7) Appropriate safety precautions and features necessary to minimize the possibility of injury to users of either the highway facility or leased right-of-way due to traffic accidents occurring on the highway or accidents resulting from nonhighway uses shall be provided. All structures constructed above highway facilities shall include adequate enclosure to prevent people or objects from falling. Improvements on leased right-of-way shall not be approved for construction over or under the highways, unless the plans therefor contain adequate provisions, acceptable to the department, for evacuation of the structures or facilities in case of a major accident endangering the occupants of such structures or facilities.
8. (8) Any improvements constructed on the leased right-of-way shall be fire resistant in accordance with the provisions of the local applicable building codes. The leased premises shall not be used for the manufacture or storage of flammable, explosive, or hazardous material or for any occupation which is deemed by the department to be a hazard to highway or nonhighway users. In cases where the department questions the acceptability of the existing local applicable building codes, conformance with a nationally accepted model building code, or any other code acceptable to the department may be required.
9. (9) Structures built over highway right-of-way shall occupy no more length of the highway than prescribed by the department.
10. (10) The design, occupancy, and use of any structure over or under a highway facility shall be such that neither the use, safety, appearance, nor the enjoyment of the highway will be adversely affected by fumes, vapors, odors, drippings, droppings, or discharges of any kind therefrom from such structure.
11. (11) All on-premise signs, displays, or devices must have prior written approval by the district engineer and shall be restricted to those indicating ownership and type of on-premise activities.
12. (12) Construction of any structure above or below a highway shall not require any temporary or permanent change in alignment or profile of an existing highway without prior written approval by the department.
13. (13) Where the department is of the opinion that the proposed use of leased right-of-way requires changes in or additions to existing facilities for the proper operation and maintenance of such facilities, the changes or additions shall be provided without cost to the department.
14. (14) Improvements on leased right-of-way shall be designed and constructed in a manner which will permit access to highway facilities for the purpose of inspection, maintenance, and reconstruction when necessary.
15. (15) Persons desiring to lease highway right-of-way may be required to furnish an attorney's title opinion establishing to the department's satisfaction that the lease will be consistent with property rights owned by others.
16. (16) Persons desiring to lease highway right-of-way shall furnish at their own expense all engineering and other reports, designs, and findings requested by the department.

Source Note:The provisions of this §21.605 adopted to be effective October 19, 1988, 13 TexReg 5005.