97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB1764

 

Introduced 2/9/2011, by Sen. Rickey R. Hendon

 

SYNOPSIS AS INTRODUCED:
 
605 ILCS 5/9-113  from Ch. 121, par. 9-113

    Amends the Illinois Highway Code. Makes a technical change in a Section concerning obtaining the written consent of the appropriate highway authority to commence highway projects.


LRB097 09980 HEP 50149 b

 

 

A BILL FOR

 

SB1764LRB097 09980 HEP 50149 b

1    AN ACT concerning transportation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Highway Code is amended by changing
5Section 9-113 as follows:
 
6    (605 ILCS 5/9-113)  (from Ch. 121, par. 9-113)
7    Sec. 9-113. (a) No ditches, drains, track, rails, poles,
8wires, pipe line or other equipment of any any public utility
9company, municipal corporation or other public or private
10corporation, association or person shall be located, placed or
11constructed upon, under or along any highway, or upon any
12township or district road, without first obtaining the written
13consent of the appropriate highway authority as hereinafter
14provided for in this Section.
15    (b) The State and county highway authorities are authorized
16to promulgate reasonable and necessary rules, regulations, and
17specifications for highways for the administration of this
18Section. In addition to rules promulgated under this subsection
19(b), the State highway authority shall and a county highway
20authority may adopt coordination strategies and practices
21designed and intended to establish and implement effective
22communication respecting planned highway projects that the
23State or county highway authority believes may require removal,

 

 

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1relocation, or modification in accordance with subsection (f)
2of this Section. The strategies and practices adopted shall
3include but need not be limited to the delivery of 5 year
4programs, annual programs, and the establishment of
5coordination councils in the locales and with the utility
6participation that will best facilitate and accomplish the
7requirements of the State and county highway authority acting
8under subsection (f) of this Section. The utility participation
9shall include assisting the appropriate highway authority in
10establishing a schedule for the removal, relocation, or
11modification of the owner's facilities in accordance with
12subsection (f) of this Section. In addition, each utility shall
13designate in writing to the Secretary of Transportation or his
14or her designee an agent for notice and the delivery of
15programs. The coordination councils must be established on or
16before January 1, 2002. The 90 day deadline for removal,
17relocation, or modification of the ditches, drains, track,
18rails, poles, wires, pipe line, or other equipment in
19subsection (f) of this Section shall be enforceable upon the
20establishment of a coordination council in the district or
21locale where the property in question is located. The
22coordination councils organized by a county highway authority
23shall include the county engineer, the County Board Chairman or
24his or her designee, and with such utility participation as
25will best facilitate and accomplish the requirements of a
26highway authority acting under subsection (f) of this Section.

 

 

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1Should a county highway authority decide not to establish
2coordination councils, the 90 day deadline for removal,
3relocation, or modification of the ditches, drains, track,
4rails, poles, wires, pipe line, or other equipment in
5subsection (f) of this Section shall be waived for those
6highways.
7    (c) In the case of non-toll federal-aid fully
8access-controlled State highways, the State highway authority
9shall not grant consent to the location, placement or
10construction of ditches, drains, track, rails, poles, wires,
11pipe line or other equipment upon, under or along any such
12non-toll federal-aid fully access-controlled State highway,
13which:
14        (1) would require cutting the pavement structure
15    portion of such highway for installation or, except in the
16    event of an emergency, would require the use of any part of
17    such highway right-of-way for purposes of maintenance or
18    repair. Where, however, the State highway authority
19    determines prior to installation that there is no other
20    access available for maintenance or repair purposes, use by
21    the entity of such highway right-of-way shall be permitted
22    for such purposes in strict accordance with the rules,
23    regulations and specifications of the State highway
24    authority, provided however, that except in the case of
25    access to bridge structures, in no such case shall an
26    entity be permitted access from the through-travel lanes,

 

 

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1    shoulders or ramps of the non-toll federal-aid fully
2    access-controlled State highway to maintain or repair its
3    accommodation; or
4        (2) would in the judgment of the State highway
5    authority, endanger or impair any such ditches, drains,
6    track, rails, poles, wires, pipe lines or other equipment
7    already in place; or
8        (3) would, if installed longitudinally within the
9    access control lines of such highway, be above ground after
10    installation except that the State highway authority may
11    consent to any above ground installation upon, under or
12    along any bridge, interchange or grade separation within
13    the right-of-way which installation is otherwise in
14    compliance with this Section and any rules, regulations or
15    specifications issued hereunder; or
16        (4) would be inconsistent with Federal law or with
17    rules, regulations or directives of appropriate Federal
18    agencies.
19    (d) In the case of accommodations upon, under or along
20non-toll federal-aid fully access-controlled State highways
21the State highway authority may charge an entity reasonable
22compensation for the right of that entity to longitudinally
23locate, place or construct ditches, drains, track, rails,
24poles, wires, pipe line or other equipment upon, under or along
25such highway. Such compensation may include in-kind
26compensation.

 

 

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1    Where the entity applying for use of a non-toll federal-aid
2fully access-controlled State highway right-of-way is a public
3utility company, municipal corporation or other public or
4private corporation, association or person, such compensation
5shall be based upon but shall not exceed a reasonable estimate
6by the State highway authority of the fair market value of an
7easement or leasehold for such use of the highway right-of-way.
8Where the State highway authority determines that the
9applied-for use of such highway right-of-way is for private
10land uses by an individual and not for commercial purposes, the
11State highway authority may charge a lesser fee than would be
12charged a public utility company, municipal corporation or
13other public or private corporation or association as
14compensation for the use of the non-toll federal-aid fully
15access-controlled State highway right-of-way. In no case shall
16the written consent of the State highway authority give or be
17construed to give any entity any easement, leasehold or other
18property interest of any kind in, upon, under, above or along
19the non-toll federal-aid fully access-controlled State highway
20right-of-way.
21    Where the compensation from any entity is in whole or in
22part a fee, such fee may be reasonably set, at the election of
23the State highway authority, in the form of a single lump sum
24payment or a schedule of payments. All such fees charged as
25compensation may be reviewed and adjusted upward by the State
26highway authority once every 5 years provided that any such

 

 

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1adjustment shall be based on changes in the fair market value
2of an easement or leasehold for such use of the non-toll
3federal-aid fully access-controlled State highway
4right-of-way. All such fees received as compensation by the
5State highway authority shall be deposited in the Road Fund.
6    (e) Any entity applying for consent shall submit such
7information in such form and detail to the appropriate highway
8authority as to allow the authority to evaluate the entity's
9application. In the case of accommodations upon, under or along
10non-toll federal-aid fully access-controlled State highways
11the entity applying for such consent shall reimburse the State
12highway authority for all of the authority's reasonable
13expenses in evaluating that entity's application, including
14but not limited to engineering and legal fees.
15    (f) Any ditches, drains, track, rails, poles, wires, pipe
16line, or other equipment located, placed, or constructed upon,
17under, or along a highway with the consent of the State or
18county highway authority under this Section shall, upon written
19notice by the State or county highway authority be removed,
20relocated, or modified by the owner, the owner's agents,
21contractors, or employees at no expense to the State or county
22highway authority when and as deemed necessary by the State or
23county highway authority for highway or highway safety
24purposes. The notice shall be properly given after the
25completion of engineering plans, the receipt of the necessary
26permits issued by the appropriate State and county highway

 

 

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1authority to begin work, and the establishment of sufficient
2rights-of-way for a given utility authorized by the State or
3county highway authority to remain on the highway right-of-way
4such that the unit of local government or other owner of any
5facilities receiving notice in accordance with this subsection
6(f) can proceed with relocating, replacing, or reconstructing
7the ditches, drains, track, rails, poles, wires, pipe line, or
8other equipment. If a permit application to relocate on a
9public right-of-way is not filed within 15 days of the receipt
10of final engineering plans, the notice precondition of a permit
11to begin work is waived. However, under no circumstances shall
12this notice provision be construed to require the State or any
13government department or agency to purchase additional
14rights-of-way to accommodate utilities. If, within 90 days
15after receipt of such written notice, the ditches, drains,
16track, rails, poles, wires, pipe line, or other equipment have
17not been removed, relocated, or modified to the reasonable
18satisfaction of the State or county highway authority, or if
19arrangements are not made satisfactory to the State or county
20highway authority for such removal, relocation, or
21modification, the State or county highway authority may remove,
22relocate, or modify such ditches, drains, track, rails, poles,
23wires, pipe line, or other equipment and bill the owner thereof
24for the total cost of such removal, relocation, or
25modification. The scope of the project shall be taken into
26consideration by the State or county highway authority in

 

 

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1determining satisfactory arrangements. The State or county
2highway authority shall determine the terms of payment of those
3costs provided that all costs billed by the State or county
4highway authority shall not be made payable over more than a 5
5year period from the date of billing. The State and county
6highway authority shall have the power to extend the time of
7payment in cases of demonstrated financial hardship by a unit
8of local government or other public owner of any facilities
9removed, relocated, or modified from the highway right-of-way
10in accordance with this subsection (f). This paragraph shall
11not be construed to prohibit the State or county highway
12authority from paying any part of the cost of removal,
13relocation, or modification where such payment is otherwise
14provided for by State or federal statute or regulation. At any
15time within 90 days after written notice was given, the owner
16of the drains, track, rails, poles, wires, pipe line, or other
17equipment may request the district engineer or, if appropriate,
18the county engineer for a waiver of the 90 day deadline. The
19appropriate district or county engineer shall make a decision
20concerning waiver within 10 days of receipt of the request and
21may waive the 90 day deadline if he or she makes a written
22finding as to the reasons for waiving the deadline. Reasons for
23waiving the deadline shall be limited to acts of God, war, the
24scope of the project, the State failing to follow the proper
25notice procedure, and any other cause beyond reasonable control
26of the owner of the facilities. Waiver must not be unreasonably

 

 

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1withheld. If 90 days after written notice was given, the
2ditches, drains, track, rails, poles, wires, pipe line, or
3other equipment have not been removed, relocated, or modified
4to the satisfaction of the State or county highway authority,
5no waiver of deadline has been requested or issued by the
6appropriate district or county engineer, and no satisfactory
7arrangement has been made with the appropriate State or county
8highway authority, the State or county highway authority or the
9general contractor of the building project may file a complaint
10in the circuit court for an emergency order to direct and
11compel the owner to remove, relocate, or modify the drains,
12track, rails, poles, wires, pipe line, or other equipment to
13the satisfaction of the appropriate highway authority. The
14complaint for an order shall be brought in the circuit in which
15the subject matter of the complaint is situated or, if the
16subject matter of the complaint is situated in more than one
17circuit, in any one of those circuits.
18    (g) It shall be the sole responsibility of the entity,
19without expense to the State highway authority, to maintain and
20repair its ditches, drains, track, rails, poles, wires, pipe
21line or other equipment after it is located, placed or
22constructed upon, under or along any State highway and in no
23case shall the State highway authority thereafter be liable or
24responsible to the entity for any damages or liability of any
25kind whatsoever incurred by the entity or to the entity's
26ditches, drains, track, rails, poles, wires, pipe line or other

 

 

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1equipment.
2    (h) Except as provided in subsection (h-1), upon receipt of
3an application therefor, consent to so use a highway may be
4granted subject to such terms and conditions not inconsistent
5with this Code as the highway authority deems for the best
6interest of the public. The terms and conditions required by
7the appropriate highway authority may include but need not be
8limited to participation by the party granted consent in the
9strategies and practices adopted under subsection (b) of this
10Section. The petitioner shall pay to the owners of property
11abutting upon the affected highways established as though by
12common law plat all damages the owners may sustain by reason of
13such use of the highway, such damages to be ascertained and
14paid in the manner provided by law for the exercise of the
15right of eminent domain.
16    (h-1) With regard to any public utility, as defined in
17Section 3-105 of the Public Utilities Act, engaged in public
18water or public sanitary sewer service that comes under the
19jurisdiction of the Illinois Commerce Commission, upon receipt
20of an application therefor, consent to so use a highway may be
21granted subject to such terms and conditions not inconsistent
22with this Code as the highway authority deems for the best
23interest of the public. The terms and conditions required by
24the appropriate highway authority may include but need not be
25limited to participation by the party granted consent in the
26strategies and practices adopted under subsection (b) of this

 

 

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1Section. If the highway authority does not have fee ownership
2of the property, the petitioner shall pay to the owners of
3property located in the highway right-of-way all damages the
4owners may sustain by reason of such use of the highway, such
5damages to be ascertained and paid in the manner provided by
6law for the exercise of the right of eminent domain. The
7consent shall not otherwise relieve the entity granted that
8consent from obtaining by purchase, condemnation, or otherwise
9the necessary approval of any owner of the fee over or under
10which the highway or road is located, except to the extent that
11no such owner has paid real estate taxes on the property for
12the 2 years prior to the grant of the consent. Owners of
13property that abuts the right-of-way but who acquired the
14property through a conveyance that either expressly excludes
15the property subject to the right-of-way or that describes the
16property conveyed as ending at the right-of-way or being
17bounded by the right-of-way or road shall not be considered
18owners of property located in the right-of-way and shall not be
19entitled to damages by reason of the use of the highway or road
20for utility purposes, except that this provision shall not
21relieve the public utility from the obligation to pay for any
22physical damage it causes to improvements lawfully located in
23the right-of-way. Owners of abutting property whose
24descriptions include the right-of-way but are made subject to
25the right-of-way shall be entitled to compensation for use of
26the right-of-way. If the property subject to the right-of-way

 

 

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1is not owned by the owners of the abutting property (either
2because it is expressly excluded from the property conveyed to
3an abutting property owner or the property as conveyed ends at
4or is bounded by the right-of-way or road), then the petitioner
5shall pay any damages, as so calculated, to the person or
6persons who have paid real estate taxes for the property as
7reflected in the county tax records. If no person has paid real
8estate taxes, then the public interest permits the installation
9of the facilities without payment of any damages. This
10provision of this amendatory Act of the 93rd General Assembly
11is intended to clarify, by codification, existing law and is
12not intended to change the law.
13    (i) Such consent shall be granted by the Department in the
14case of a State highway; by the county board or its designated
15county superintendent of highways in the case of a county
16highway; by either the highway commissioner or the county
17superintendent of highways in the case of a township or
18district road, provided that if consent is granted by the
19highway commissioner, the petition shall be filed with the
20commissioner at least 30 days prior to the proposed date of the
21beginning of construction, and that if written consent is not
22given by the commissioner within 30 days after receipt of the
23petition, the applicant may make written application to the
24county superintendent of highways for consent to the
25construction. This Section does not vitiate, extend or
26otherwise affect any consent granted in accordance with law

 

 

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1prior to the effective date of this Code to so use any highway.
2    (j) Nothing in this Section shall limit the right of a
3highway authority to permit the location, placement or
4construction or any ditches, drains, track, rails, poles,
5wires, pipe line or other equipment upon, under or along any
6highway or road as a part of its highway or road facilities or
7which the highway authority determines is necessary to service
8facilities required for operating the highway or road,
9including rest areas and weigh stations.
10    (k) Paragraphs (c) and (d) of this Section shall not apply
11to any accommodation located, placed or constructed with the
12consent of the State highway authority upon, under or along any
13non-toll federal-aid fully access-controlled State highway
14prior to July 1, 1984, provided that accommodation was
15otherwise in compliance with the rules, regulations and
16specifications of the State highway authority.
17    (l) Except as provided in subsection (l-1), the consent to
18be granted pursuant to this Section by the appropriate highway
19authority shall be effective only to the extent of the property
20interest of the State or government unit served by that highway
21authority. Such consent shall not be binding on any owner of
22the fee over or under which the highway or road is located and
23shall not otherwise relieve the entity granted that consent
24from obtaining by purchase, condemnation or otherwise the
25necessary approval of any owner of the fee over or under which
26the highway or road is located. This paragraph shall not be

 

 

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1construed as a limitation on the use for highway or road
2purposes of the land or other property interests acquired by
3the public for highway or road purposes, including the space
4under or above such right-of-way.
5    (l-1) With regard to any public utility, as defined in
6Section 3-105 of the Public Utilities Act, engaged in public
7water or public sanitary sewer service that comes under the
8jurisdiction of the Illinois Commerce Commission, the consent
9to be granted pursuant to this Section by the appropriate
10highway authority shall be effective only to the extent of the
11property interest of the State or government unit served by
12that highway authority. Such consent shall not be binding on
13any owner of the fee over or under which the highway or road is
14located but shall be binding on any abutting property owner
15whose property boundary ends at the right-of-way of the highway
16or road. For purposes of the preceding sentence, property that
17includes a portion of a highway or road but is subject to the
18highway or road shall not be considered to end at the highway
19or road. The consent shall not otherwise relieve the entity
20granted that consent from obtaining by purchase, condemnation
21or otherwise the necessary approval of any owner of the fee
22over or under which the highway or road is located, except to
23the extent that no such owner has paid real estate taxes on the
24property for the 2 years prior to the grant of the consent.
25This provision is not intended to absolve a utility from
26obtaining consent from a lawful owner of the roadway or highway

 

 

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1property (i.e. a person whose deed of conveyance lawfully
2includes the property, whether or not made subject to the
3highway or road) but who does not pay taxes by reason of
4Division 6 of Article 10 of the Property Tax Code. This
5paragraph shall not be construed as a limitation on the use for
6highway or road purposes of the land or other property
7interests acquired by the public for highway or road purposes,
8including the space under or above such right-of-way.
9    (m) The provisions of this Section apply to all permits
10issued by the Department of Transportation and the appropriate
11State or county highway authority.
12(Source: P.A. 92-470, eff. 1-1-02; 93-357, eff. 1-1-04.)