Illinois General Assembly - Full Text of HB2863
Illinois General Assembly

  Bills & Resolutions  
  Compiled Statutes  
  Public Acts  
  Legislative Reports  
  IL Constitution  
  Legislative Guide  
  Legislative Glossary  

 Search By Number
 (example: HB0001)
Search Tips

Search By Keyword

Full Text of HB2863  102nd General Assembly

HB2863enr 102ND GENERAL ASSEMBLY

  
  
  

 


 
HB2863 EnrolledLRB102 14207 RAM 19559 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
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
16authorized to promulgate reasonable and necessary rules,
17regulations, and specifications for highways for the
18administration of this Section. In addition to rules
19promulgated under this subsection (b), the State highway
20authority shall and a county highway authority may adopt
21coordination strategies and practices designed and intended to
22establish and implement effective communication respecting
23planned highway projects that the State or county highway

 

 

HB2863 Enrolled- 2 -LRB102 14207 RAM 19559 b

1authority believes may require removal, relocation, or
2modification in accordance with subsection (f) of this
3Section. The strategies and practices adopted shall include
4but need not be limited to the delivery of 5 year programs,
5annual programs, and the establishment of coordination
6councils in the locales and with the utility participation
7that will best facilitate and accomplish the requirements of
8the State and county highway authority acting under subsection
9(f) of this Section. The utility participation shall include
10assisting the appropriate highway authority in establishing a
11schedule for the removal, relocation, or modification of the
12owner's facilities in accordance with subsection (f) of this
13Section. In addition, each utility shall designate in writing
14to the Secretary of Transportation or his or her designee an
15agent for notice and the delivery of programs. The
16coordination councils must be established on or before January
171, 2002. The 90 day deadline for removal, relocation, or
18modification of the ditches, drains, track, rails, poles,
19wires, pipe line, or other equipment in subsection (f) of this
20Section shall be enforceable upon the establishment of a
21coordination council in the district or locale where the
22property in question is located. The coordination councils
23organized by a county highway authority shall include the
24county engineer, the County Board Chairman or his or her
25designee, and with such utility participation as will best
26facilitate and accomplish the requirements of a highway

 

 

HB2863 Enrolled- 3 -LRB102 14207 RAM 19559 b

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

 

 

HB2863 Enrolled- 4 -LRB102 14207 RAM 19559 b

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

 

 

HB2863 Enrolled- 5 -LRB102 14207 RAM 19559 b

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

 

 

HB2863 Enrolled- 6 -LRB102 14207 RAM 19559 b

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

 

 

HB2863 Enrolled- 7 -LRB102 14207 RAM 19559 b

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

 

 

HB2863 Enrolled- 8 -LRB102 14207 RAM 19559 b

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

 

 

HB2863 Enrolled- 9 -LRB102 14207 RAM 19559 b

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

 

 

HB2863 Enrolled- 10 -LRB102 14207 RAM 19559 b

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

 

 

HB2863 Enrolled- 11 -LRB102 14207 RAM 19559 b

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

 

 

HB2863 Enrolled- 12 -LRB102 14207 RAM 19559 b

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

 

 

HB2863 Enrolled- 13 -LRB102 14207 RAM 19559 b

1petition, the applicant may make written application to the
2county superintendent of highways for consent to the
3construction. In the case of township roads, the county
4superintendent of highways may either grant consent for the
5construction or deny the application. The county
6superintendent of highways shall provide written confirmation,
7citing the basis of the decision, to both the highway
8commissioner and the applicant. This Section does not vitiate,
9extend or otherwise affect any consent granted in accordance
10with law prior to the effective date of this Code to so use any
11highway.
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
23any non-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.

 

 

HB2863 Enrolled- 14 -LRB102 14207 RAM 19559 b

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
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 and shall not otherwise relieve the entity granted
8that consent from obtaining by purchase, condemnation or
9otherwise the necessary approval of any owner of the fee over
10or under which the highway or road is located. This paragraph
11shall not be construed as a limitation on the use for highway
12or road purposes of the land or other property interests
13acquired by the public for highway or road purposes, including
14the space under 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
26highway or road. For purposes of the preceding sentence,

 

 

HB2863 Enrolled- 15 -LRB102 14207 RAM 19559 b

1property that includes a portion of a highway or road but is
2subject to the highway or road shall not be considered to end
3at the highway or road. The consent shall not otherwise
4relieve the entity granted that consent from obtaining by
5purchase, condemnation or otherwise the necessary approval of
6any owner of the fee over or under which the highway or road is
7located, except to the extent that no such owner has paid real
8estate taxes on the property for the 2 years prior to the grant
9of the consent. This provision is not intended to absolve a
10utility from obtaining consent from a lawful owner of the
11roadway or highway property (i.e. a person whose deed of
12conveyance lawfully includes the property, whether or not made
13subject to the highway or road) but who does not pay taxes by
14reason of Division 6 of Article 10 of the Property Tax Code.
15This paragraph shall not be construed as a limitation on the
16use for highway 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.)