SB2626 95TH GENERAL ASSEMBLY

LRB095 19905 JAM 46322 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
SB2626

Introduced 2/15/2008, by Sen. Dan Cronin

SYNOPSIS AS INTRODUCED:

20 ILCS 3420/3	from Ch. 127, par. 133c23
20 ILCS 3420/4	from Ch. 127, par. 133c24
20 ILCS 3420/7 new

Amends the Illinois State Agency Historic Resources Preservation Act. Grants a right of private action against violations of the Act. Makes other changes. Effective immediately.

A BILL FOR

AN ACT concerning State government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois State Agency Historic Resources Preservation Act is amended by changing Sections 3 and 4 and by adding Section 7 as follows:

(20 ILCS 3420/3) (from Ch. 127, par. 133c23)

Sec. 3. Definitions.

(a) "Director" means the Director of Historic Preservation who shall serve as the State Historic Preservation Officer.

(b) "Agency" shall have the same meaning as in Section 1-20 of the Illinois Administrative Procedure Act, and shall specifically include all agencies and entities made subject to such Act by any State statute.

(c) "Historic resource" means any property which is either publicly or privately held and which:

(1) is listed in the National Register of Historic Places (hereafter "National Register");

(2) has been formally determined by the Director to be eligible for listing in the National Register as defined in Section 106 of Title 16 of the United States Code;

(3) has been nominated by the Director and the Illinois Historic Sites Advisory Council for listing in the National Register;

(4) meets one or more criteria for listing in the National Register, as determined by the Director; or

(5) is listed in the Illinois Register of Historic Places.

(d) "Adverse effect" means:

(1) destruction or alteration of all or part of an historic resource;

(2) isolation or alteration of the surrounding environment of an historic resource;

(3) introduction of visual, audible, or atmospheric elements which are out of character with an historic resource or which alter its setting;

(4) neglect or improper utilization of an historic resource which results in its deterioration or destruction; or

(5) transfer or sale of an historic resource to any public or private entity without the inclusion of adequate conditions or restrictions regarding preservation, maintenance, or use.

(e) "Comment" means the written finding by the Director of the effect of a State undertaking on an historic resource.

(f) "Undertaking" means any project, activity, or program that can result in changes in the character or use of historic property, if any historic property is located in the area of potential effects. The project, activity or program shall be under the direct or indirect jurisdiction of a State agency or licensed or assisted by a State agency. An undertaking includes, but is not limited to, action which is:

(1) directly undertaken by a State agency;

(2) supported in whole or in part through State contracts, grants, subsidies, loan guarantees, or any other form of direct or indirect funding assistance; or

(3) carried out pursuant to a State lease, permit, license, certificate, approval, or other form of entitlement or permission or pursuant to a requirement that the State be notified about action taken or to be taken.

(g) "Committee" means the Historic Preservation Mediation Committee.

(h) "Feasible" means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.

(i) "Private undertaking" means any undertaking that does not receive public funding or is not on public lands.

(j) "High probability area" means any occurrence of Cahokia Alluvium, Carmi Member of the Equality Formation, Grayslake Peat, Parkland Sand, Peyton Colluvium, the Batavia Member of the Henry Formation, or the Mackinaw Member, as mapped by Lineback et al. (1979) at a scale of 1-500,000 within permanent stream floodplains and including

(1) 500 yards of the adjoining bluffline crest of the Fox, Illinois, Kankakee, Kaskaskia, Mississippi, Ohio, Rock and Wabash Rivers and 300 yards of the adjoining bluffline crest of all other rivers or

(2) a 500 yard wide area along the shore of Lake Michigan abutting the high water mark.

(Source: P.A. 87-717; 87-739; 87-847; 88-45.)

(20 ILCS 3420/4) (from Ch. 127, par. 133c24)

Sec. 4. State agency undertakings.

(a) As early in the planning process as may be practicable and prior to the approval of the final design or plan of any undertaking by a State agency, or prior to the funding of any undertaking by a State agency, or prior to an action of approval or entitlement of any private undertaking by a State agency, written notice of the project shall be given to the Director either by the State agency or the recipients of its funds, permits or licenses. The State agency shall consult with the Director to determine the documentation requirements necessary for identification and treatment of historic resources. For the purposes of identification and evaluation of historic resources, the Director may require archaeological and historic investigations. Responsibility for notice and documentation may be delegated by the State agency to a local or private designee.

(b) Within 30 days after receipt of complete and correct documentation of a proposed undertaking, the Director shall review and comment to the agency on the likelihood that the undertaking will have an adverse effect on a historic resource. In the case of a private undertaking, the Director shall, not later than 30 days following the receipt of an application with complete documentation of the undertaking, either approve that application allowing the undertaking to proceed or tender to the applicant a written statement setting forth the reasons for the requirement of an archaeological investigation. If there is no action within 30 days after the filing of the application with the complete documentation of the undertaking, the applicant may deem the application approved and may proceed with the undertaking. Thereafter, all requirements for archaeological investigations are waived under this Act.

(c) If the Director finds that an undertaking will adversely effect an historic resource or is inconsistent with agency policies, the State agency shall consult with the Director and shall discuss alternatives to the proposed undertaking which could eliminate, minimize, or mitigate its adverse effect. During the consultation process, the State agency shall explore all feasible and prudent plans which eliminate, minimize, or mitigate adverse effects on historic resources. Grantees, permittees, licensees, or other parties in interest and representatives of national, State, and local units of government and public and private organizations may participate in the consultation process. The process may involve on-site inspections and public informational meetings pursuant to regulations issued by the Historic Preservation Agency.

(d) The State agency and the Director may agree that there is a feasible and prudent alternative which eliminates, minimizes, or mitigates the adverse effect of the undertaking. Upon such agreement, or if the State agency and the Director agree that there are no feasible and prudent alternatives which eliminate, minimize, or mitigate the adverse effect, the Director shall prepare a Memorandum of Agreement describing the alternatives or stating the finding. The State agency may proceed with the undertaking once a Memorandum of Agreement has been signed by both the State agency and the Director.

(e) After the consultation process, the Director and the State agency may fail to agree on the existence of a feasible and prudent alternative which would eliminate, minimize, or mitigate the adverse effect of the undertaking on the historic resource. If no agreement is reached, the agency shall call a public meeting in the county where the undertaking is proposed within 60 days. If, within 14 days following conclusion of the public meeting, the State agency and the Director fail to agree on a feasible and prudent alternative, the proposed undertaking, with supporting documentation, shall be submitted to the Historic Preservation Mediation Committee. The document shall be sufficient to identify each alternative considered by the Agency and the Director during the consultation process and the reason for its rejection.

(f) The Mediation Committee shall consist of the Director and 5 persons appointed by the Director for terms of 3 years each, each of whom shall be no lower in rank than a division chief and each of whom shall represent a different State agency. An agency that is a party to mediation shall be notified of all hearings and deliberations and shall have the right to participate in deliberations as a non-voting member of the Committee. Within 30 days after submission of the proposed undertaking, the Committee shall meet with the Director and the submitting agency to review each alternative considered by the State agency and the Director and to evaluate the existence of a feasible and prudent alternative. In the event that the Director and the submitting agency continue to disagree, the Committee shall provide a statement of findings or comments setting forth an alternative to the proposed undertaking or stating the finding that there is no feasible or prudent alternative. The State agency shall consider the written comments of the Committee and shall respond in writing to the Committee before proceeding with the undertaking.

(g) When an undertaking is being reviewed pursuant to Section 106 of the National Historic Preservation Act of 1966, the procedures of this law shall not apply and any review or comment by the Director on such undertaking shall be within the framework or procedures of the federal law. When an undertaking involves a structure listed on the Illinois Register of Historic Places, the rules and procedures of the Illinois Historic Preservation Act shall apply. This subsection shall not prevent the Illinois Historic Preservation Agency from entering into an agreement with the Advisory Council on Historic Preservation pursuant to Section 106 of the National Historic Preservation Act to substitute this Act and its procedures for procedures set forth in Council regulations found in 36 C.F.R. Part 800.7. A State undertaking that is necessary to prevent an immediate and imminent threat to life or property shall be exempt from the requirements of this Act. Where possible, the Director shall be consulted in the determination of the exemption. In all cases, the agency shall provide the Director with a statement of the reasons for the exemption and shall have an opportunity to comment on the exemption. The statement and the comments of the Director shall be included in the annual report of the Historic Preservation Agency as a guide to future actions. The provisions of this Act do not apply to undertakings pursuant to the Illinois Oil and Gas Act, the Surface-Mined Land Conservation and Reclamation Act and the Surface Coal Mining Land Conservation and Reclamation Act.

(h) The Director shall hold a public hearing before (1) making a finding that an undertaking will not adversely affect an historic resource, (2) making a finding that there is no prudent or feasible alternative, or (3) entering into a Memorandum of Agreement.

(Source: P.A. 86-707; 87-739; 87-847; 87-895.)

(20 ILCS 3420/7 new)

Sec. 7. Standing. Any person or entity shall have standing and the right to enforce the provisions of this Act. In case any building or structure is demolished, constructed, reconstructed, altered, repaired, converted, or maintained in violation of this Act, any person or entity that shows that his, her, or its property or person or other interest will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding (1) to prevent the unlawful construction, reconstruction, alteration, repair, conversion, maintenance, or use, (2) to prevent the occupancy of the building, structure, or land, (3) to prevent any illegal act, conduct, business, or use in or about the premises, or (4) to restrain, correct, or abate the violation.

In any action or proceeding for a purpose mentioned in this Section, the court with jurisdiction of such action or proceeding has the power to and in its discretion may issue a restraining order, a writ of mandamus to any officer, or a preliminary injunction, as well as a permanent injunction, upon such terms and under such conditions as will do justice and enforce the purposes set forth in this Act.

If the court finds that the defendant has engaged in any of the foregoing prohibited activities, then the court shall allow the plaintiff a reasonable sum of money for the services of the plaintiff's attorney. This allowance shall be a part of the costs of the litigation assessed against the defendant and may be recovered as such.

A plaintiff need not prove any specific, special, or unique damages to the plaintiff or the plaintiff's property or any adverse effect upon the plaintiff's property from the alleged violation in order to maintain a suit under this Act.

Section 99. Effective date. This Act takes effect upon becoming law.