Illinois General Assembly - Full Text of HB2863
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Full Text of HB2863  102nd General Assembly

HB2863ham001 102ND GENERAL ASSEMBLY

Rep. Daniel Swanson

Filed: 4/12/2021

 

 


 

 


 
10200HB2863ham001LRB102 14207 RAM 24619 a

1
AMENDMENT TO HOUSE BILL 2863

2    AMENDMENT NO. ______. Amend House Bill 2863 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
16authorized to promulgate reasonable and necessary rules,

 

 

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1regulations, and specifications for highways for the
2administration of this Section. In addition to rules
3promulgated under this subsection (b), the State highway
4authority shall and a county highway authority may adopt
5coordination strategies and practices designed and intended to
6establish and implement effective communication respecting
7planned highway projects that the State or county highway
8authority believes may require removal, relocation, or
9modification in accordance with subsection (f) of this
10Section. The strategies and practices adopted shall include
11but need not be limited to the delivery of 5 year programs,
12annual programs, and the establishment of coordination
13councils in the locales and with the utility participation
14that will best facilitate and accomplish the requirements of
15the State and county highway authority acting under subsection
16(f) of this Section. The utility participation shall include
17assisting the appropriate highway authority in establishing a
18schedule for the removal, relocation, or modification of the
19owner's facilities in accordance with subsection (f) of this
20Section. In addition, each utility shall designate in writing
21to the Secretary of Transportation or his or her designee an
22agent for notice and the delivery of programs. The
23coordination councils must be established on or before January
241, 2002. The 90 day deadline for removal, relocation, or
25modification of the ditches, drains, track, rails, poles,
26wires, pipe line, or other equipment in subsection (f) of this

 

 

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1Section shall be enforceable upon the establishment of a
2coordination council in the district or locale where the
3property in question is located. The coordination councils
4organized by a county highway authority shall include the
5county engineer, the County Board Chairman or his or her
6designee, and with such utility participation as will best
7facilitate and accomplish the requirements of a highway
8authority acting under subsection (f) of this Section. Should
9a county highway authority decide not to establish
10coordination councils, the 90 day deadline for removal,
11relocation, or modification of the ditches, drains, track,
12rails, poles, wires, pipe line, or other equipment in
13subsection (f) of this Section shall be waived for those
14highways.
15    (c) In the case of non-toll federal-aid fully
16access-controlled State highways, the State highway authority
17shall not grant consent to the location, placement or
18construction of ditches, drains, track, rails, poles, wires,
19pipe line or other equipment upon, under or along any such
20non-toll federal-aid fully access-controlled State highway,
21which:
22        (1) would require cutting the pavement structure
23    portion of such highway for installation or, except in the
24    event of an emergency, would require the use of any part of
25    such highway right-of-way for purposes of maintenance or
26    repair. Where, however, the State highway authority

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1the district engineer or, if appropriate, the county engineer
2for a waiver of the 90 day deadline. The appropriate district
3or county engineer shall make a decision concerning waiver
4within 10 days of receipt of the request and may waive the 90
5day deadline if he or she makes a written finding as to the
6reasons for waiving the deadline. Reasons for waiving the
7deadline shall be limited to acts of God, war, the scope of the
8project, the State failing to follow the proper notice
9procedure, and any other cause beyond reasonable control of
10the owner of the facilities. Waiver must not be unreasonably
11withheld. If 90 days after written notice was given, the
12ditches, drains, track, rails, poles, wires, pipe line, or
13other equipment have not been removed, relocated, or modified
14to the satisfaction of the State or county highway authority,
15no waiver of deadline has been requested or issued by the
16appropriate district or county engineer, and no satisfactory
17arrangement has been made with the appropriate State or county
18highway authority, the State or county highway authority or
19the general contractor of the building project may file a
20complaint in the circuit court for an emergency order to
21direct and compel the owner to remove, relocate, or modify the
22drains, track, rails, poles, wires, pipe line, or other
23equipment to the satisfaction of the appropriate highway
24authority. The complaint for an order shall be brought in the
25circuit in which the subject matter of the complaint is
26situated or, if the subject matter of the complaint is

 

 

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1situated in more than one circuit, in any one of those
2circuits.
3    (g) It shall be the sole responsibility of the entity,
4without expense to the State highway authority, to maintain
5and repair its ditches, drains, track, rails, poles, wires,
6pipe line or other equipment after it is located, placed or
7constructed upon, under or along any State highway and in no
8case shall the State highway authority thereafter be liable or
9responsible to the entity for any damages or liability of any
10kind whatsoever incurred by the entity or to the entity's
11ditches, drains, track, rails, poles, wires, pipe line or
12other equipment.
13    (h) Except as provided in subsection (h-1), upon receipt
14of an application therefor, consent to so use a highway may be
15granted subject to such terms and conditions not inconsistent
16with this Code as the highway authority deems for the best
17interest of the public. The terms and conditions required by
18the appropriate highway authority may include but need not be
19limited to participation by the party granted consent in the
20strategies and practices adopted under subsection (b) of this
21Section. The petitioner shall pay to the owners of property
22abutting upon the affected highways established as though by
23common law plat all damages the owners may sustain by reason of
24such use of the highway, such damages to be ascertained and
25paid in the manner provided by law for the exercise of the
26right of eminent domain.

 

 

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1    (h-1) With regard to any public utility, as defined in
2Section 3-105 of the Public Utilities Act, engaged in public
3water or public sanitary sewer service that comes under the
4jurisdiction of the Illinois Commerce Commission, upon receipt
5of an application therefor, consent to so use a highway may be
6granted subject to such terms and conditions not inconsistent
7with this Code as the highway authority deems for the best
8interest of the public. The terms and conditions required by
9the appropriate highway authority may include but need not be
10limited to participation by the party granted consent in the
11strategies and practices adopted under subsection (b) of this
12Section. If the highway authority does not have fee ownership
13of the property, the petitioner shall pay to the owners of
14property located in the highway right-of-way all damages the
15owners may sustain by reason of such use of the highway, such
16damages to be ascertained and paid in the manner provided by
17law for the exercise of the right of eminent domain. The
18consent shall not otherwise relieve the entity granted that
19consent from obtaining by purchase, condemnation, or otherwise
20the necessary approval of any owner of the fee over or under
21which the highway or road is located, except to the extent that
22no such owner has paid real estate taxes on the property for
23the 2 years prior to the grant of the consent. Owners of
24property that abuts the right-of-way but who acquired the
25property through a conveyance that either expressly excludes
26the property subject to the right-of-way or that describes the

 

 

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1property conveyed as ending at the right-of-way or being
2bounded by the right-of-way or road shall not be considered
3owners of property located in the right-of-way and shall not
4be entitled to damages by reason of the use of the highway or
5road for utility purposes, except that this provision shall
6not relieve the public utility from the obligation to pay for
7any physical damage it causes to improvements lawfully located
8in the right-of-way. Owners of abutting property whose
9descriptions include the right-of-way but are made subject to
10the right-of-way shall be entitled to compensation for use of
11the right-of-way. If the property subject to the right-of-way
12is not owned by the owners of the abutting property (either
13because it is expressly excluded from the property conveyed to
14an abutting property owner or the property as conveyed ends at
15or is bounded by the right-of-way or road), then the
16petitioner shall pay any damages, as so calculated, to the
17person or persons who have paid real estate taxes for the
18property as reflected in the county tax records. If no person
19has paid real estate taxes, then the public interest permits
20the installation of the facilities without payment of any
21damages. This provision of this amendatory Act of the 93rd
22General Assembly is intended to clarify, by codification,
23existing law and is not intended to change the law.
24    (i) Such consent shall be granted by the Department in the
25case of a State highway; by the county board or its designated
26county superintendent of highways in the case of a county

 

 

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1highway; by either the highway commissioner or the county
2superintendent of highways in the case of a township or
3district road, provided that if consent is granted by the
4highway commissioner, the petition shall be filed with the
5commissioner at least 30 days prior to the proposed date of the
6beginning of construction, and that if written consent is not
7given by the commissioner within 30 days after receipt of the
8petition, the applicant may make written application to the
9county superintendent of highways for consent to the
10construction. In the case of township roads, the county
11superintendent of highways may either grant consent for the
12construction or deny the application. The county
13superintendent of highways shall provide written confirmation,
14citing the basis of the decision, to both the highway
15commissioner and the applicant. This Section does not vitiate,
16extend or otherwise affect any consent granted in accordance
17with law prior to the effective date of this Code to so use any
18highway.
19    (j) Nothing in this Section shall limit the right of a
20highway authority to permit the location, placement or
21construction or any ditches, drains, track, rails, poles,
22wires, pipe line or other equipment upon, under or along any
23highway or road as a part of its highway or road facilities or
24which the highway authority determines is necessary to service
25facilities required for operating the highway or road,
26including rest areas and weigh stations.

 

 

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

 

 

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

 

 

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1issued by the Department of Transportation and the appropriate
2State or county highway authority.
3(Source: P.A. 92-470, eff. 1-1-02; 93-357, eff. 1-1-04.)".