99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
SB2237

 

Introduced 1/13/2016, by Sen. Don Harmon

 

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

    Amends the Illinois Highway Code. Provides that upon receipt of an application, consent to use a highway may be granted to any telecommunications company issued a certificate of public convenience and necessity from the Illinois Commerce Commission. Provides requirements (same as those under current law for a public utility) for telecommunication company use of a highway right-of-way if the highway authority does not have fee ownership of the property to be used. Makes conforming changes.


LRB099 15719 RJF 40018 b

 

 

A BILL FOR

 

SB2237LRB099 15719 RJF 40018 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 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 subsections subsection (h-1) and
3(h-2), upon receipt of an application therefor, consent to so
4use a highway may be granted subject to such terms and
5conditions not inconsistent with this Code as the highway
6authority deems for the best interest of the public. The terms
7and conditions required by the appropriate highway authority
8may include but need not be limited to participation by the
9party granted consent in the strategies and practices adopted
10under subsection (b) of this Section. The petitioner shall pay
11to the owners of property abutting upon the affected highways
12established as though by common law plat all damages the owners
13may sustain by reason of such use of the highway, such damages
14to be ascertained and paid in the manner provided by law for
15the exercise of the right 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    (h-2) With regard to any telecommunications company issued
14a certificate of public convenience and necessity from the
15Illinois Commerce Commission, consent to use a highway may be
16granted upon receipt of an application, subject to terms and
17conditions consistent with this Code as the highway authority
18deems for the best interest of the public. The terms and
19conditions required by the appropriate highway authority may
20include, but need not be limited to, participation by the party
21granted consent in the strategies and practices adopted under
22subsection (b) of this Section.
23    If the highway authority does not have fee ownership of the
24property, the petitioner shall pay to the owners of property
25located in the highway right-of-way all damages the owners may
26sustain by reason of use of the highway, with damages to be

 

 

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

 

 

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1to the person or persons who have paid real estate taxes for
2the property as reflected in the county tax records. If no
3person has paid real estate taxes, then the public interest
4permits the installation of the facilities without payment of
5any damages.
6    (i) Such consent shall be granted by the Department in the
7case of a State highway; by the county board or its designated
8county superintendent of highways in the case of a county
9highway; by either the highway commissioner or the county
10superintendent of highways in the case of a township or
11district road, provided that if consent is granted by the
12highway commissioner, the petition shall be filed with the
13commissioner at least 30 days prior to the proposed date of the
14beginning of construction, and that if written consent is not
15given by the commissioner within 30 days after receipt of the
16petition, the applicant may make written application to the
17county superintendent of highways for consent to the
18construction. This Section does not vitiate, extend or
19otherwise affect any consent granted in accordance with law
20prior to the effective date of this Code to so use any highway.
21    (j) Nothing in this Section shall limit the right of a
22highway authority to permit the location, placement or
23construction or any ditches, drains, track, rails, poles,
24wires, pipe line or other equipment upon, under or along any
25highway or road as a part of its highway or road facilities or
26which the highway authority determines is necessary to service

 

 

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1facilities required for operating the highway or road,
2including rest areas and weigh stations.
3    (k) Paragraphs (c) and (d) of this Section shall not apply
4to any accommodation located, placed or constructed with the
5consent of the State highway authority upon, under or along any
6non-toll federal-aid fully access-controlled State highway
7prior to July 1, 1984, provided that accommodation was
8otherwise in compliance with the rules, regulations and
9specifications of the State highway authority.
10    (l) Except as provided in subsection (l-1), the consent to
11be granted pursuant to this Section by the appropriate highway
12authority shall be effective only to the extent of the property
13interest of the State or government unit served by that highway
14authority. Such consent shall not be binding on any owner of
15the fee over or under which the highway or road is located and
16shall not otherwise relieve the entity granted that consent
17from obtaining by purchase, condemnation or otherwise the
18necessary approval of any owner of the fee over or under which
19the highway or road is located. This paragraph shall not be
20construed as a limitation on the use for highway or road
21purposes of the land or other property interests acquired by
22the public for highway or road purposes, including the space
23under or above such right-of-way.
24    (l-1) With regard to any public utility, as defined in
25Section 3-105 of the Public Utilities Act, engaged in public
26water or public sanitary sewer service that comes under the

 

 

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1jurisdiction of the Illinois Commerce Commission, the consent
2to be granted pursuant to this Section by the appropriate
3highway authority shall be effective only to the extent of the
4property interest of the State or government unit served by
5that highway authority. Such consent shall not be binding on
6any owner of the fee over or under which the highway or road is
7located but shall be binding on any abutting property owner
8whose property boundary ends at the right-of-way of the highway
9or road. For purposes of the preceding sentence, property that
10includes a portion of a highway or road but is subject to the
11highway or road shall not be considered to end at the highway
12or road. The consent shall not otherwise relieve the entity
13granted that consent from obtaining by purchase, condemnation
14or otherwise the necessary approval of any owner of the fee
15over or under which the highway or road is located, except to
16the extent that no such owner has paid real estate taxes on the
17property for the 2 years prior to the grant of the consent.
18This provision is not intended to absolve a utility from
19obtaining consent from a lawful owner of the roadway or highway
20property (i.e. a person whose deed of conveyance lawfully
21includes the property, whether or not made subject to the
22highway or road) but who does not pay taxes by reason of
23Division 6 of Article 10 of the Property Tax Code. This
24paragraph shall not be construed as a limitation on the use for
25highway or road purposes of the land or other property
26interests acquired by the public for highway or road purposes,

 

 

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1including the space under or above such right-of-way.
2    (m) The provisions of this Section apply to all permits
3issued by the Department of Transportation and the appropriate
4State or county highway authority.
5(Source: P.A. 92-470, eff. 1-1-02; 93-357, eff. 1-1-04.)