Sen. Don Harmon

Filed: 4/4/2016

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 2237

2    AMENDMENT NO. ______. Amend Senate Bill 2237 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Illinois Highway Code is amended by
5changing Section 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

 

 

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1specifications for highways for the administration of this
2Section. In addition to rules promulgated under this subsection
3(b), the State highway authority shall and a county highway
4authority may adopt coordination strategies and practices
5designed and intended to establish and implement effective
6communication respecting planned highway projects that the
7State or county highway authority believes may require removal,
8relocation, or modification in accordance with subsection (f)
9of this Section. The strategies and practices adopted shall
10include but need not be limited to the delivery of 5 year
11programs, annual programs, and the establishment of
12coordination councils in the locales and with the utility
13participation that will best facilitate and accomplish the
14requirements of the State and county highway authority acting
15under subsection (f) of this Section. The utility participation
16shall include assisting the appropriate highway authority in
17establishing a schedule for the removal, relocation, or
18modification of the owner's facilities in accordance with
19subsection (f) of this Section. In addition, each utility shall
20designate in writing to the Secretary of Transportation or his
21or her designee an agent for notice and the delivery of
22programs. The coordination councils must be established on or
23before January 1, 2002. The 90 day deadline for removal,
24relocation, or modification of the ditches, drains, track,
25rails, poles, wires, pipe line, or other equipment in
26subsection (f) of this Section shall be enforceable upon the

 

 

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1establishment of a coordination council in the district or
2locale where the property in question is located. The
3coordination councils organized by a county highway authority
4shall include the county engineer, the County Board Chairman or
5his or her designee, and with such utility participation as
6will best facilitate and accomplish the requirements of a
7highway authority acting under subsection (f) of this Section.
8Should a county highway authority decide not to establish
9coordination councils, the 90 day deadline for removal,
10relocation, or modification of the ditches, drains, track,
11rails, poles, wires, pipe line, or other equipment in
12subsection (f) of this Section shall be waived for those
13highways.
14    (c) In the case of non-toll federal-aid fully
15access-controlled State highways, the State highway authority
16shall not grant consent to the location, placement or
17construction of ditches, drains, track, rails, poles, wires,
18pipe line or other equipment upon, under or along any such
19non-toll federal-aid fully access-controlled State highway,
20which:
21        (1) would require cutting the pavement structure
22    portion of such highway for installation or, except in the
23    event of an emergency, would require the use of any part of
24    such highway right-of-way for purposes of maintenance or
25    repair. Where, however, the State highway authority
26    determines prior to installation that there is no other

 

 

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1    access available for maintenance or repair purposes, use by
2    the entity of such highway right-of-way shall be permitted
3    for such purposes in strict accordance with the rules,
4    regulations and specifications of the State highway
5    authority, provided however, that except in the case of
6    access to bridge structures, in no such case shall an
7    entity be permitted access from the through-travel lanes,
8    shoulders or ramps of the non-toll federal-aid fully
9    access-controlled State highway to maintain or repair its
10    accommodation; or
11        (2) would in the judgment of the State highway
12    authority, endanger or impair any such ditches, drains,
13    track, rails, poles, wires, pipe lines or other equipment
14    already in place; or
15        (3) would, if installed longitudinally within the
16    access control lines of such highway, be above ground after
17    installation except that the State highway authority may
18    consent to any above ground installation upon, under or
19    along any bridge, interchange or grade separation within
20    the right-of-way which installation is otherwise in
21    compliance with this Section and any rules, regulations or
22    specifications issued hereunder; or
23        (4) would be inconsistent with Federal law or with
24    rules, regulations or directives of appropriate Federal
25    agencies.
26    (d) In the case of accommodations upon, under or along

 

 

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1non-toll federal-aid fully access-controlled State highways
2the State highway authority may charge an entity reasonable
3compensation for the right of that entity to longitudinally
4locate, place or construct ditches, drains, track, rails,
5poles, wires, pipe line or other equipment upon, under or along
6such highway. Such compensation may include in-kind
7compensation.
8    Where the entity applying for use of a non-toll federal-aid
9fully access-controlled State highway right-of-way is a public
10utility company, municipal corporation or other public or
11private corporation, association or person, such compensation
12shall be based upon but shall not exceed a reasonable estimate
13by the State highway authority of the fair market value of an
14easement or leasehold for such use of the highway right-of-way.
15Where the State highway authority determines that the
16applied-for use of such highway right-of-way is for private
17land uses by an individual and not for commercial purposes, the
18State highway authority may charge a lesser fee than would be
19charged a public utility company, municipal corporation or
20other public or private corporation or association as
21compensation for the use of the non-toll federal-aid fully
22access-controlled State highway right-of-way. In no case shall
23the written consent of the State highway authority give or be
24construed to give any entity any easement, leasehold or other
25property interest of any kind in, upon, under, above or along
26the non-toll federal-aid fully access-controlled State highway

 

 

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1right-of-way.
2    Where the compensation from any entity is in whole or in
3part a fee, such fee may be reasonably set, at the election of
4the State highway authority, in the form of a single lump sum
5payment or a schedule of payments. All such fees charged as
6compensation may be reviewed and adjusted upward by the State
7highway authority once every 5 years provided that any such
8adjustment shall be based on changes in the fair market value
9of an easement or leasehold for such use of the non-toll
10federal-aid fully access-controlled State highway
11right-of-way. All such fees received as compensation by the
12State highway authority shall be deposited in the Road Fund.
13    (e) Any entity applying for consent shall submit such
14information in such form and detail to the appropriate highway
15authority as to allow the authority to evaluate the entity's
16application. In the case of accommodations upon, under or along
17non-toll federal-aid fully access-controlled State highways
18the entity applying for such consent shall reimburse the State
19highway authority for all of the authority's reasonable
20expenses in evaluating that entity's application, including
21but not limited to engineering and legal fees.
22    (f) Any ditches, drains, track, rails, poles, wires, pipe
23line, or other equipment located, placed, or constructed upon,
24under, or along a highway with the consent of the State or
25county highway authority under this Section shall, upon written
26notice by the State or county highway authority be removed,

 

 

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

 

 

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1highway authority for such removal, relocation, or
2modification, the State or county highway authority may remove,
3relocate, or modify such ditches, drains, track, rails, poles,
4wires, pipe line, or other equipment and bill the owner thereof
5for the total cost of such removal, relocation, or
6modification. The scope of the project shall be taken into
7consideration by the State or county highway authority in
8determining satisfactory arrangements. The State or county
9highway authority shall determine the terms of payment of those
10costs provided that all costs billed by the State or county
11highway authority shall not be made payable over more than a 5
12year period from the date of billing. The State and county
13highway authority shall have the power to extend the time of
14payment in cases of demonstrated financial hardship by a unit
15of local government or other public owner of any facilities
16removed, relocated, or modified from the highway right-of-way
17in accordance with this subsection (f). This paragraph shall
18not be construed to prohibit the State or county highway
19authority from paying any part of the cost of removal,
20relocation, or modification where such payment is otherwise
21provided for by State or federal statute or regulation. At any
22time within 90 days after written notice was given, the owner
23of the drains, track, rails, poles, wires, pipe line, or other
24equipment may request the district engineer or, if appropriate,
25the county engineer for a waiver of the 90 day deadline. The
26appropriate district or county engineer shall make a decision

 

 

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1concerning waiver within 10 days of receipt of the request and
2may waive the 90 day deadline if he or she makes a written
3finding as to the reasons for waiving the deadline. Reasons for
4waiving the deadline shall be limited to acts of God, war, the
5scope of the project, the State failing to follow the proper
6notice procedure, and any other cause beyond reasonable control
7of the owner of the facilities. Waiver must not be unreasonably
8withheld. If 90 days after written notice was given, the
9ditches, drains, track, rails, poles, wires, pipe line, or
10other equipment have not been removed, relocated, or modified
11to the satisfaction of the State or county highway authority,
12no waiver of deadline has been requested or issued by the
13appropriate district or county engineer, and no satisfactory
14arrangement has been made with the appropriate State or county
15highway authority, the State or county highway authority or the
16general contractor of the building project may file a complaint
17in the circuit court for an emergency order to direct and
18compel the owner to remove, relocate, or modify the drains,
19track, rails, poles, wires, pipe line, or other equipment to
20the satisfaction of the appropriate highway authority. The
21complaint for an order shall be brought in the circuit in which
22the subject matter of the complaint is situated or, if the
23subject matter of the complaint is situated in more than one
24circuit, in any one of those circuits.
25    (g) It shall be the sole responsibility of the entity,
26without expense to the State highway authority, to maintain and

 

 

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1repair its ditches, drains, track, rails, poles, wires, pipe
2line or other equipment after it is located, placed or
3constructed upon, under or along any State highway and in no
4case shall the State highway authority thereafter be liable or
5responsible to the entity for any damages or liability of any
6kind whatsoever incurred by the entity or to the entity's
7ditches, drains, track, rails, poles, wires, pipe line or other
8equipment.
9    (h) Except as provided in subsections subsection (h-1) and
10(h-2), upon receipt of an application therefor, consent to so
11use a highway may be granted subject to such terms and
12conditions not inconsistent with this Code as the highway
13authority deems for the best interest of the public. The terms
14and conditions required by the appropriate highway authority
15may include but need not be limited to participation by the
16party granted consent in the strategies and practices adopted
17under subsection (b) of this Section. The petitioner shall pay
18to the owners of property abutting upon the affected highways
19established as though by common law plat all damages the owners
20may sustain by reason of such use of the highway, such damages
21to be ascertained and paid in the manner provided by law for
22the exercise of the right of eminent domain.
23    (h-1) With regard to any public utility, as defined in
24Section 3-105 of the Public Utilities Act, engaged in public
25water or public sanitary sewer service that comes under the
26jurisdiction of the Illinois Commerce Commission, upon receipt

 

 

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1of an application therefor, consent to so use a highway may be
2granted subject to such terms and conditions not inconsistent
3with this Code as the highway authority deems for the best
4interest of the public. The terms and conditions required by
5the appropriate highway authority may include but need not be
6limited to participation by the party granted consent in the
7strategies and practices adopted under subsection (b) of this
8Section. If the highway authority does not have fee ownership
9of the property, the petitioner shall pay to the owners of
10property located in the highway right-of-way all damages the
11owners may sustain by reason of such use of the highway, such
12damages to be ascertained and paid in the manner provided by
13law for the exercise of the right of eminent domain. The
14consent shall not otherwise relieve the entity granted that
15consent from obtaining by purchase, condemnation, or otherwise
16the necessary approval of any owner of the fee over or under
17which the highway or road is located, except to the extent that
18no such owner has paid real estate taxes on the property for
19the 2 years prior to the grant of the consent. Owners of
20property that abuts the right-of-way but who acquired the
21property through a conveyance that either expressly excludes
22the property subject to the right-of-way or that describes the
23property conveyed as ending at the right-of-way or being
24bounded by the right-of-way or road shall not be considered
25owners of property located in the right-of-way and shall not be
26entitled to damages by reason of the use of the highway or road

 

 

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1for utility purposes, except that this provision shall not
2relieve the public utility from the obligation to pay for any
3physical damage it causes to improvements lawfully located in
4the right-of-way. Owners of abutting property whose
5descriptions include the right-of-way but are made subject to
6the right-of-way shall be entitled to compensation for use of
7the right-of-way. If the property subject to the right-of-way
8is not owned by the owners of the abutting property (either
9because it is expressly excluded from the property conveyed to
10an abutting property owner or the property as conveyed ends at
11or is bounded by the right-of-way or road), then the petitioner
12shall pay any damages, as so calculated, to the person or
13persons who have paid real estate taxes for the property as
14reflected in the county tax records. If no person has paid real
15estate taxes, then the public interest permits the installation
16of the facilities without payment of any damages. This
17provision of this amendatory Act of the 93rd General Assembly
18is intended to clarify, by codification, existing law and is
19not intended to change the law.
20    (h-2) With regard to any communications provider, consent
21to use a highway may be granted upon receipt of an application,
22subject to terms and conditions consistent with this Code as
23the highway authority deems for the best interest of the
24public. The terms and conditions required by the appropriate
25highway authority may include, but need not be limited to,
26participation by the party granted consent in the strategies

 

 

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

 

 

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1the right-of-way. If the property subject to the right-of-way
2is not owned by the owners of the abutting property, either
3because it is expressly excluded from the property conveyed to
4an abutting property owner or the property as conveyed ends at
5or is bounded by the right-of-way or road, then the petitioner
6shall pay any damages to the person or persons who have paid
7real estate taxes for the property as reflected in the county
8tax records. If no person has paid real estate taxes, then the
9public interest permits the installation of the facilities
10without payment of any damages.
11    For purposes of this subsection (h-2), "communications
12provider" means (1) any telecommunications carrier issued a
13certificate of public convenience and necessity or a
14certificate of service authority from the Illinois Commerce
15Commission; (2) any "interconnected voice over Internet
16protocol provider" as defined in Section 13-235 of the Public
17Utilities Act; (3) any company providing "broadband service" as
18defined in subsection (c) of Section 21-201 of the Public
19Utilities Act; (4) any "cable operator" as defined in
20subsection (d) of Section 21-201 of the Public Utilities Act;
21or (5) any "holder" as defined in subsection (k) of Section
2221-201 of the Public Utilities Act.
23    (i) Such consent shall be granted by the Department in the
24case of a State highway; by the county board or its designated
25county superintendent of highways in the case of a county
26highway; by either the highway commissioner or the county

 

 

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1superintendent of highways in the case of a township or
2district road, provided that if consent is granted by the
3highway commissioner, the petition shall be filed with the
4commissioner at least 30 days prior to the proposed date of the
5beginning of construction, and that if written consent is not
6given by the commissioner within 30 days after receipt of the
7petition, the applicant may make written application to the
8county superintendent of highways for consent to the
9construction. This Section does not vitiate, extend or
10otherwise affect any consent granted in accordance with law
11prior to the effective date of this Code to so use any highway.
12    (j) Nothing in this Section shall limit the right of a
13highway authority to permit the location, placement or
14construction or any ditches, drains, track, rails, poles,
15wires, pipe line or other equipment upon, under or along any
16highway or road as a part of its highway or road facilities or
17which the highway authority determines is necessary to service
18facilities required for operating the highway or road,
19including rest areas and weigh stations.
20    (k) Paragraphs (c) and (d) of this Section shall not apply
21to any accommodation located, placed or constructed with the
22consent of the State highway authority upon, under or along any
23non-toll federal-aid fully access-controlled State highway
24prior to July 1, 1984, provided that accommodation was
25otherwise in compliance with the rules, regulations and
26specifications of the State highway authority.

 

 

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1    (l) Except as provided in subsection (l-1), the consent to
2be granted pursuant to this Section by the appropriate highway
3authority shall be effective only to the extent of the property
4interest of the State or government unit served by that highway
5authority. Such consent shall not be binding on any owner of
6the fee over or under which the highway or road is located and
7shall not otherwise relieve the entity granted that consent
8from obtaining by purchase, condemnation or otherwise the
9necessary approval of any owner of the fee over or under which
10the highway or road is located. This paragraph shall not be
11construed as a limitation on the use for highway or road
12purposes of the land or other property interests acquired by
13the public for highway or road purposes, including the space
14under or above such right-of-way.
15    (l-1) With regard to any public utility, as defined in
16Section 3-105 of the Public Utilities Act, engaged in public
17water or public sanitary sewer service that comes under the
18jurisdiction of the Illinois Commerce Commission, the consent
19to be granted pursuant to this Section by the appropriate
20highway authority shall be effective only to the extent of the
21property interest of the State or government unit served by
22that highway authority. Such consent shall not be binding on
23any owner of the fee over or under which the highway or road is
24located but shall be binding on any abutting property owner
25whose property boundary ends at the right-of-way of the highway
26or road. For purposes of the preceding sentence, property that

 

 

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1includes a portion of a highway or road but is subject to the
2highway or road shall not be considered to end at the highway
3or road. The consent shall not otherwise relieve the entity
4granted that consent from obtaining by purchase, condemnation
5or otherwise the necessary approval of any owner of the fee
6over or under which the highway or road is located, except to
7the extent that no such owner has paid real estate taxes on the
8property for the 2 years prior to the grant of the consent.
9This provision is not intended to absolve a utility from
10obtaining consent from a lawful owner of the roadway or highway
11property (i.e. a person whose deed of conveyance lawfully
12includes the property, whether or not made subject to the
13highway or road) but who does not pay taxes by reason of
14Division 6 of Article 10 of the Property Tax Code. This
15paragraph shall not be construed as a limitation on the use for
16highway or road purposes of the land or other property
17interests acquired by the public for highway or road purposes,
18including the space under or above such right-of-way.
19    (m) The provisions of this Section apply to all permits
20issued by the Department of Transportation and the appropriate
21State or county highway authority.
22(Source: P.A. 92-470, eff. 1-1-02; 93-357, eff. 1-1-04.)".