Prior to the enactment two years ago of Texas Transportation Code Section 391.038 by the 85th Legislature, there was no Texas or Federal law governing the height of signs. There is still no Federal law on sign height, but the Texas Legislature passed effective September 1, 2017 Section 391.038, which was not opposed by staff at TxDOT, because of the safety and mechanical problems they encountered in measuring sign height. That law only grandfathered signs existing on March 1, 2017, by rendering as legal those signs up to 85’, so that any permit cancellations proceedings over alleged height violations on those signs were dismissed. By contrast, the statute did not contain a height limit on new signs. Insider published an article on this new sign height legislation in its June 5, 2017 edition, which can be found here.
In the meantime, the Texas Transportation Commission had been enforcing an administrative rule, as opposed to a statute, limiting sign height to 42.5’ since the early 1980s. In response to the Legislature’s passage of Section 391.038, the Commission then amended its administrative rules in March 2018, including 43 TAC Section 21.189(a) to provide that “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.” In other words, the Commission effectively challenged the Legislature to pass a statute in the upcoming legislative session governing new sign height limitations, and if it failed to do so, height would automatically default to 85’. Insider also published an article on this administrative rule in its February 26, 2018 edition, which can be found here.
Given these high stakes, the 86th Texas Legislative Session was especially active with lobbying over sign height issues. In the 11th hour of the Session, which concluded on May 27th, a compromise bill was passed, and is now sitting on Governor Abbot’s desk awaiting signature. Senate Bill 357, which amends Section 391.038 and can be found here, increases the maximum height of new signs to 60’. The 85’ grandfathered rights for the signs existing as of March 1, 2017 are largely preserved from the legislation passed two years ago, despite some initial efforts by Scenic Texas to water down those rights. There is also a new penalty provision, apparently as a concession to Scenic Texas, including that the Commission can withhold permits for those with at least 100 signs until the permit holder has conformed all of his signs to the height standard. A final addition is that this bill exempts those signs from the new height limit that are located in certified cities, like Houston and Dallas, which would instead apply their own height standards. The Governor is expected to sign the new sign height legislation, which would then become effective on September 1, 2019.
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