Public Act 93-0357
SB1054 Enrolled LRB093 06226 DRH 11472 b
AN ACT concerning highways.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Illinois Highway Code is amended by
changing Section 9-113 as follows:
(605 ILCS 5/9-113) (from Ch. 121, par. 9-113)
Sec. 9-113. (a) No ditches, drains, track, rails, poles,
wires, pipe line or other equipment of any public utility
company, municipal corporation or other public or private
corporation, association or person shall be located, placed
or constructed upon, under or along any highway, or upon any
township or district road, without first obtaining the
written consent of the appropriate highway authority as
hereinafter provided for in this Section.
(b) The State and county highway authorities are
authorized to promulgate reasonable and necessary rules,
regulations, and specifications for highways for the
administration of this Section. In addition to rules
promulgated under this subsection (b), the State highway
authority shall and a county highway authority may adopt
coordination strategies and practices designed and intended
to establish and implement effective communication respecting
planned highway projects that the State or county highway
authority believes may require removal, relocation, or
modification in accordance with subsection (f) of this
Section. The strategies and practices adopted shall include
but need not be limited to the delivery of 5 year programs,
annual programs, and the establishment of coordination
councils in the locales and with the utility participation
that will best facilitate and accomplish the requirements of
the State and county highway authority acting under
subsection (f) of this Section. The utility participation
shall include assisting the appropriate highway authority in
establishing a schedule for the removal, relocation, or
modification of the owner's facilities in accordance with
subsection (f) of this Section. In addition, each utility
shall designate in writing to the Secretary of Transportation
or his or her designee an agent for notice and the delivery
of programs. The coordination councils must be established on
or before January 1, 2002. The 90 day deadline for removal,
relocation, or modification of the ditches, drains, track,
rails, poles, wires, pipe line, or other equipment in
subsection (f) of this Section shall be enforceable upon the
establishment of a coordination council in the district or
locale where the property in question is located. The
coordination councils organized by a county highway authority
shall include the county engineer, the County Board Chairman
or his or her designee, and with such utility participation
as will best facilitate and accomplish the requirements of a
highway authority acting under subsection (f) of this
Section. Should a county highway authority decide not to
establish coordination councils, the 90 day deadline for
removal, relocation, or modification of the ditches, drains,
track, rails, poles, wires, pipe line, or other equipment in
subsection (f) of this Section shall be waived for those
highways.
(c) In the case of non-toll federal-aid fully
access-controlled State highways, the State highway authority
shall not grant consent to the location, placement or
construction of ditches, drains, track, rails, poles, wires,
pipe line or other equipment upon, under or along any such
non-toll federal-aid fully access-controlled State highway,
which:
(1) would require cutting the pavement structure
portion of such highway for installation or, except in
the event of an emergency, would require the use of any
part of such highway right-of-way for purposes of
maintenance or repair. Where, however, the State highway
authority determines prior to installation that there is
no other access available for maintenance or repair
purposes, use by the entity of such highway right-of-way
shall be permitted for such purposes in strict accordance
with the rules, regulations and specifications of the
State highway authority, provided however, that except in
the case of access to bridge structures, in no such case
shall an entity be permitted access from the
through-travel lanes, shoulders or ramps of the non-toll
federal-aid fully access-controlled State highway to
maintain or repair its accommodation; or
(2) would in the judgment of the State highway
authority, endanger or impair any such ditches, drains,
track, rails, poles, wires, pipe lines or other equipment
already in place; or
(3) would, if installed longitudinally within the
access control lines of such highway, be above ground
after installation except that the State highway
authority may consent to any above ground installation
upon, under or along any bridge, interchange or grade
separation within the right-of-way which installation is
otherwise in compliance with this Section and any rules,
regulations or specifications issued hereunder; or
(4) would be inconsistent with Federal law or with
rules, regulations or directives of appropriate Federal
agencies.
(d) In the case of accommodations upon, under or along
non-toll federal-aid fully access-controlled State highways
the State highway authority may charge an entity reasonable
compensation for the right of that entity to longitudinally
locate, place or construct ditches, drains, track, rails,
poles, wires, pipe line or other equipment upon, under or
along such highway. Such compensation may include in-kind
compensation.
Where the entity applying for use of a non-toll
federal-aid fully access-controlled State highway
right-of-way is a public utility company, municipal
corporation or other public or private corporation,
association or person, such compensation shall be based upon
but shall not exceed a reasonable estimate by the State
highway authority of the fair market value of an easement or
leasehold for such use of the highway right-of-way. Where the
State highway authority determines that the applied-for use
of such highway right-of-way is for private land uses by an
individual and not for commercial purposes, the State highway
authority may charge a lesser fee than would be charged a
public utility company, municipal corporation or other public
or private corporation or association as compensation for the
use of the non-toll federal-aid fully access-controlled State
highway right-of-way. In no case shall the written consent
of the State highway authority give or be construed to give
any entity any easement, leasehold or other property interest
of any kind in, upon, under, above or along the non-toll
federal-aid fully access-controlled State highway
right-of-way.
Where the compensation from any entity is in whole or in
part a fee, such fee may be reasonably set, at the election
of the State highway authority, in the form of a single lump
sum payment or a schedule of payments. All such fees charged
as compensation may be reviewed and adjusted upward by the
State highway authority once every 5 years provided that any
such adjustment shall be based on changes in the fair market
value of an easement or leasehold for such use of the
non-toll federal-aid fully access-controlled State highway
right-of-way. All such fees received as compensation by the
State highway authority shall be deposited in the Road Fund.
(e) Any entity applying for consent shall submit such
information in such form and detail to the appropriate
highway authority as to allow the authority to evaluate the
entity's application. In the case of accommodations upon,
under or along non-toll federal-aid fully access-controlled
State highways the entity applying for such consent shall
reimburse the State highway authority for all of the
authority's reasonable expenses in evaluating that entity's
application, including but not limited to engineering and
legal fees.
(f) Any ditches, drains, track, rails, poles, wires,
pipe line, or other equipment located, placed, or constructed
upon, under, or along a highway with the consent of the State
or county highway authority under this Section shall, upon
written notice by the State or county highway authority be
removed, relocated, or modified by the owner, the owner's
agents, contractors, or employees at no expense to the State
or county highway authority when and as deemed necessary by
the State or county highway authority for highway or highway
safety purposes. The notice shall be properly given after the
completion of engineering plans, the receipt of the necessary
permits issued by the appropriate State and county highway
authority to begin work, and the establishment of sufficient
rights-of-way for a given utility authorized by the State or
county highway authority to remain on the highway
right-of-way such that the unit of local government or other
owner of any facilities receiving notice in accordance with
this subsection (f) can proceed with relocating, replacing,
or reconstructing the ditches, drains, track, rails, poles,
wires, pipe line, or other equipment. If a permit
application to relocate on a public right-of-way is not filed
within 15 days of the receipt of final engineering plans, the
notice precondition of a permit to begin work is waived.
However, under no circumstances shall this notice provision
be construed to require the State or any government
department or agency to purchase additional rights-of-way to
accommodate utilities. If, within 90 days after receipt of
such written notice, the ditches, drains, track, rails,
poles, wires, pipe line, or other equipment have not been
removed, relocated, or modified to the reasonable
satisfaction of the State or county highway authority, or if
arrangements are not made satisfactory to the State or county
highway authority for such removal, relocation, or
modification, the State or county highway authority may
remove, relocate, or modify such ditches, drains, track,
rails, poles, wires, pipe line, or other equipment and bill
the owner thereof for the total cost of such removal,
relocation, or modification. The scope of the project shall
be taken into consideration by the State or county highway
authority in determining satisfactory arrangements. The State
or county highway authority shall determine the terms of
payment of those costs provided that all costs billed by the
State or county highway authority shall not be made payable
over more than a 5 year period from the date of billing. The
State and county highway authority shall have the power to
extend the time of payment in cases of demonstrated financial
hardship by a unit of local government or other public owner
of any facilities removed, relocated, or modified from the
highway right-of-way in accordance with this subsection (f).
This paragraph shall not be construed to prohibit the State
or county highway authority from paying any part of the cost
of removal, relocation, or modification where such payment is
otherwise provided for by State or federal statute or
regulation. At any time within 90 days after written notice
was given, the owner of the drains, track, rails, poles,
wires, pipe line, or other equipment may request the district
engineer or, if appropriate, the county engineer for a waiver
of the 90 day deadline. The appropriate district or county
engineer shall make a decision concerning waiver within 10
days of receipt of the request and may waive the 90 day
deadline if he or she makes a written finding as to the
reasons for waiving the deadline. Reasons for waiving the
deadline shall be limited to acts of God, war, the scope of
the project, the State failing to follow the proper notice
procedure, and any other cause beyond reasonable control of
the owner of the facilities. Waiver must not be unreasonably
withheld. If 90 days after written notice was given, the
ditches, drains, track, rails, poles, wires, pipe line, or
other equipment have not been removed, relocated, or modified
to the satisfaction of the State or county highway authority,
no waiver of deadline has been requested or issued by the
appropriate district or county engineer, and no satisfactory
arrangement has been made with the appropriate State or
county highway authority, the State or county highway
authority or the general contractor of the building project
may file a complaint in the circuit court for an emergency
order to direct and compel the owner to remove, relocate, or
modify the drains, track, rails, poles, wires, pipe line, or
other equipment to the satisfaction of the appropriate
highway authority. The complaint for an order shall be
brought in the circuit in which the subject matter of the
complaint is situated or, if the subject matter of the
complaint is situated in more than one circuit, in any one of
those circuits.
(g) It shall be the sole responsibility of the entity,
without expense to the State highway authority, to maintain
and repair its ditches, drains, track, rails, poles, wires,
pipe line or other equipment after it is located, placed or
constructed upon, under or along any State highway and in no
case shall the State highway authority thereafter be liable
or responsible to the entity for any damages or liability of
any kind whatsoever incurred by the entity or to the entity's
ditches, drains, track, rails, poles, wires, pipe line or
other equipment.
(h) Except as provided in subsection (h-1), upon receipt
of an application therefor, consent to so use a highway may
be granted subject to such terms and conditions not
inconsistent with this Code as the highway authority deems
for the best interest of the public. The terms and conditions
required by the appropriate highway authority may include but
need not be limited to participation by the party granted
consent in the strategies and practices adopted under
subsection (b) of this Section. The petitioner shall pay to
the owners of property abutting upon the affected highways
established as though by common law plat all damages the
owners may sustain by reason of such use of the highway, such
damages to be ascertained and paid in the manner provided by
law for the exercise of the right of eminent domain.
(h-1) With regard to any public utility, as defined in
Section 3-105 of the Public Utilities Act, engaged in public
water or public sanitary sewer service that comes under the
jurisdiction of the Illinois Commerce Commission, upon
receipt of an application therefor, consent to so use a
highway may be granted subject to such terms and conditions
not inconsistent with this Code as the highway authority
deems for the best interest of the public. The terms and
conditions required by the appropriate highway authority may
include but need not be limited to participation by the party
granted consent in the strategies and practices adopted under
subsection (b) of this Section. If the highway authority does
not have fee ownership of the property, the petitioner shall
pay to the owners of property located in the highway
right-of-way all damages the owners may sustain by reason of
such use of the highway, such damages to be ascertained and
paid in the manner provided by law for the exercise of the
right of eminent domain. The consent shall not otherwise
relieve the entity granted that consent from obtaining by
purchase, condemnation, or otherwise the necessary approval
of any owner of the fee over or under which the highway or
road is located, except to the extent that no such owner has
paid real estate taxes on the property for the 2 years prior
to the grant of the consent. Owners of property that abuts
the right-of-way but who acquired the property through a
conveyance that either expressly excludes the property
subject to the right-of-way or that describes the property
conveyed as ending at the right-of-way or being bounded by
the right-of-way or road shall not be considered owners of
property located in the right-of-way and shall not be
entitled to damages by reason of the use of the highway or
road for utility purposes, except that this provision shall
not relieve the public utility from the obligation to pay for
any physical damage it causes to improvements lawfully
located in the right-of-way. Owners of abutting property
whose descriptions include the right-of-way but are made
subject to the right-of-way shall be entitled to compensation
for use of the right-of-way. If the property subject to the
right-of-way is not owned by the owners of the abutting
property (either because it is expressly excluded from the
property conveyed to an abutting property owner or the
property as conveyed ends at or is bounded by the
right-of-way or road), then the petitioner shall pay any
damages, as so calculated, to the person or persons who have
paid real estate taxes for the property as reflected in the
county tax records. If no person has paid real estate taxes,
then the public interest permits the installation of the
facilities without payment of any damages. This provision of
this amendatory Act of the 93rd General Assembly is intended
to clarify, by codification, existing law and is not intended
to change the law.
(i) Such consent shall be granted by the Department in
the case of a State highway; by the county board or its
designated county superintendent of highways in the case of a
county highway; by either the highway commissioner or the
county superintendent of highways in the case of a township
or district road, provided that if consent is granted by the
highway commissioner, the petition shall be filed with the
commissioner at least 30 days prior to the proposed date of
the beginning of construction, and that if written consent is
not given by the commissioner within 30 days after receipt
of the petition, the applicant may make written application
to the county superintendent of highways for consent to the
construction. This Section does not vitiate, extend or
otherwise affect any consent granted in accordance with law
prior to the effective date of this Code to so use any
highway.
(j) Nothing in this Section shall limit the right of a
highway authority to permit the location, placement or
construction or any ditches, drains, track, rails, poles,
wires, pipe line or other equipment upon, under or along any
highway or road as a part of its highway or road facilities
or which the highway authority determines is necessary to
service facilities required for operating the highway or
road, including rest areas and weigh stations.
(k) Paragraphs (c) and (d) of this Section shall not
apply to any accommodation located, placed or constructed
with the consent of the State highway authority upon, under
or along any non-toll federal-aid fully access-controlled
State highway prior to July 1, 1984, provided that
accommodation was otherwise in compliance with the rules,
regulations and specifications of the State highway
authority.
(l) Except as provided in subsection (l-1), the consent
to be granted pursuant to this Section by the appropriate
highway authority shall be effective only to the extent of
the property interest of the State or government unit served
by that highway authority. Such consent shall not be binding
on any owner of the fee over or under which the highway or
road is located and shall not otherwise relieve the entity
granted that consent from obtaining by purchase, condemnation
or otherwise the necessary approval of any owner of the fee
over or under which the highway or road is located. This
paragraph shall not be construed as a limitation on the use
for highway or road purposes of the land or other property
interests acquired by the public for highway or road
purposes, including the space under or above such
right-of-way.
(l-1) With regard to any public utility, as defined in
Section 3-105 of the Public Utilities Act, engaged in public
water or public sanitary sewer service that comes under the
jurisdiction of the Illinois Commerce Commission, the consent
to be granted pursuant to this Section by the appropriate
highway authority shall be effective only to the extent of
the property interest of the State or government unit served
by that highway authority. Such consent shall not be binding
on any owner of the fee over or under which the highway or
road is located but shall be binding on any abutting property
owner whose property boundary ends at the right-of-way of the
highway or road. For purposes of the preceding sentence,
property that includes a portion of a highway or road but is
subject to the highway or road shall not be considered to end
at the highway or road. The consent shall not otherwise
relieve the entity granted that consent from obtaining by
purchase, condemnation or otherwise the necessary approval of
any owner of the fee over or under which the highway or road
is located, except to the extent that no such owner has paid
real estate taxes on the property for the 2 years prior to
the grant of the consent. This provision is not intended to
absolve a utility from obtaining consent from a lawful owner
of the roadway or highway property (i.e. a person whose deed
of conveyance lawfully includes the property, whether or not
made subject to the highway or road) but who does not pay
taxes by reason of Division 6 of Article 10 of the Property
Tax Code. This paragraph shall not be construed as a
limitation on the use for highway or road purposes of the
land or other property interests acquired by the public for
highway or road purposes, including the space under or above
such right-of-way.
(m) The provisions of this Section apply to all permits
issued by the Department of Transportation and the
appropriate State or county highway authority.
(Source: P.A. 92-470, eff. 1-1-02.)
Section 10. The Conveyances Act is amended by changing
Section 7a as follows:
(765 ILCS 5/7a) (from Ch. 30, par. 6a)
Sec. 7a. (a) Except as provided in subsection (b), any
instrument, including a will, which conveys, transfers,
encumbers, leases or releases, or by which an agreement is
made to convey, transfer, encumber, lease or release, or by
virtue of which there is conveyed, transferred, encumbered,
leased or released, any real property, whether described by a
metes and bounds description or otherwise, which abuts upon
any road, street, highway or alley, or upon any abandoned or
vacated road, street, highway or alley shall be deemed and
construed to include any right, title or interest in that
part of such road, street, highway or alley which the
abutting owner who makes any such instrument shall presently
have or, which such owner, his heirs, successors and assigns
subsequently acquires in such road, street, highway or alley
unless such instrument by its terms expressly excludes, in
the description of the property, such road, street, highway
or alley. The right, title or interest acquired under such
instrument in such road, street, highway or alley, by virtue
of the provisions of this Act, shall be deemed and construed
to be for the same uses and purposes set forth in such
instrument with respect to the real property specifically
described in the instrument. However, no covenants or
agreements made by the maker of any such instrument with
respect to any real property specifically described shall
apply to or be enforceable with respect to any right, title
or interest which is acquired solely by virtue of the
provisions of this Act.
(b) With regard to any public utility, as defined in
Section 3-105 of the Public Utilities Act, engaged in public
water or public sanitary sewer service that comes under the
jurisdiction of the Illinois Commerce Commission, any
instrument, including a will, which conveys, transfers,
encumbers, leases or releases, or by which an agreement is
made to convey, transfer, encumber, lease or release, or by
virtue of which there is conveyed, transferred, encumbered,
leased or released, any real property, whether described by a
metes and bounds description or otherwise, which abuts upon
any road, street, highway or alley, or upon any abandoned or
vacated road, street, highway or alley shall be deemed and
construed to include any right, title or interest in that
part of such road, street, highway or alley which the
abutting owner who makes any such instrument shall presently
have or, which such owner, his heirs, successors and assigns
subsequently acquires in such road, street, highway or alley
unless such instrument by its terms expressly excludes, in
the description of the property, such road, street, highway
or alley. The right, title or interest acquired under such
instrument in such road, street, highway or alley, by virtue
of the provisions of this Act, shall be deemed and construed
to be for the same uses and purposes set forth in such
instrument with respect to the real property specifically
described in the instrument. However, no covenants or
agreements made by the maker of any such instrument with
respect to any real property specifically described shall
apply to or be enforceable with respect to any right, title,
or interest which is acquired solely by virtue to the
provisions of this Act. "Conveyance" expressly excludes a
road, street, highway, or alley if the legal description of
the property uses the boundary of the road, street, highway,
or alley closest to the property being conveyed as a boundary
of the property being conveyed or expressly states that the
road, street, highway, or alley is excepted from the property
being conveyed. A conveyance does not expressly exclude a
road, street, highway, or alley if the conveyance is
described as being "subject to" the road, street, highway, or
alley. The rights accruing in the abutting property owner
under this Act shall be subject to all existing uses and
easements located within the right-of-way; the rights shall
also be subject to such future uses and easements as may be
permitted to be located within the right-of-way under the
provisions of the Illinois Highway Code or any successor
statute thereto. This provision of this amendatory Act of
the 93rd General Assembly is intended to clarify, by
codification, existing law and is not intended to change the
law.
(Source: P.A. 76-1660.)