43 Tex. Admin. Code § 11.55 - Appeal Process
(a) A property
owner or its authorized representative, as the applicant, may file a petition
of appeal to contest:
(1) a requirement for a
change or repair under §
11.54(d) of this
subchapter (relating to Inspection);
(2) the denial of a request for a variance
under §
11.52(e) of this
subchapter (relating to Variance);
(3) a finding of significant impact and
threat to public safety under §
11.52(g) of this
subchapter (relating to Remodeled business); or
(4) the denial of a request for a driveway
permit under §
11.52(b) of this
subchapter (relating to Permit requirements).
(b) A district engineer's denial of a request
for an access permit under §11.59 of this subchapter (relating to Permit
of Access at Locations Where the Department Owns the Access) is final and a
property owner has no right to appeal the denial.
(c) The petition must be filed with the
director before the 31st day after the date written notice of the denial,
requirement, or finding is received by the applicant.
(d) The petition must:
(1) be in writing;
(2) completely and succinctly state the
grounds for appeal and its factual basis; and
(3) include sufficient factual documentation,
such as drawings, surveys, or photographs, to establish the merits of the
appeal.
(e) The applicant
has the burden of demonstrating that the department incorrectly applied its
access connection requirements to the applicable facts.
(f) For a petition that satisfies the
requirements of this section, the director will issue, before the 91st day
after the date of receipt of the petition, a written decision approving or
disapproving the appeal and, on issuance, immediately send the decision to the
applicant. If a written decision is not issued within the 90-day period, the
appeal is considered to be approved and the request granted, subject to:
(1) purchase of access rights in accordance
with §11.60 of this subchapter (relating to Sale of Access at Locations
Where the Department Controls the Access) if the applicant has no existing
right of access; and
(2) consent of
the Federal Highway Administration in accordance with
23 C.F.R. §
710.401 if the requested access connection is
on an interstate highway.
(g) To appeal a decision issued under
subsection (f) of this section, the applicant must submit its written petition
of appeal to the executive director before the 31st day after the date that
written notice of the decision is received. The petition must satisfy the
requirements of subsection (d) of this section. The executive director will
issue, before the 31st day after the date of receipt of the petition, a written
decision approving or disapproving the appeal.
(h) To appeal a decision of the executive
director issued under subsection (g) of this section, the applicant must submit
to the executive director its written petition of appeal to a board of
variance, before the 31st day after the date that the executive director's
decision under subsection (g) of this section is received. On receipt of the
petition, the procedure set out in this subsection applies.
(1) The executive director will appoint a
board of variance composed of at least three persons, each of whom is not below
the level of department division director, office director, or district
engineer and was not involved in the original decision to deny the applicant's
request. A majority of the members of the board constitutes a quorum.
(2) The board of variance will meet and
consider the appeal. Before the 10th day preceding the date of the meeting, the
board will give the applicant notice of the time and place of the meeting and
afford the applicant an opportunity to attend and present evidence regarding
the appeal.
(3) Before the 11th day
after the date of the meeting, the board of variance will issue a final written
decision approving or disapproving the appeal.
Notes
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