Full Text of HB2863 102nd General Assembly
HB2863ham001 102ND GENERAL ASSEMBLY | Rep. Daniel Swanson Filed: 4/12/2021
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| 1 | | AMENDMENT TO HOUSE BILL 2863
| 2 | | AMENDMENT NO. ______. Amend House Bill 2863 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Illinois Highway Code is amended by | 5 | | changing 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, | 8 | | wires, pipe line
or other equipment of any public utility | 9 | | company, municipal corporation
or other public or private | 10 | | corporation, association or person shall be
located, placed or | 11 | | constructed upon, under or along any highway, or upon any
| 12 | | township or district road, without first obtaining the written | 13 | | consent of the
appropriate highway authority as hereinafter | 14 | | provided for in this
Section.
| 15 | | (b) The State and county highway authorities are
| 16 | | authorized to promulgate
reasonable and necessary rules, |
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| 1 | | regulations, and specifications for
highways for the | 2 | | administration of this Section.
In addition to rules | 3 | | promulgated under this subsection (b), the State highway
| 4 | | authority shall and a county highway authority may adopt | 5 | | coordination
strategies and practices designed and intended to | 6 | | establish and implement
effective communication respecting | 7 | | planned highway projects that the
State or county highway | 8 | | authority believes may require removal, relocation,
or | 9 | | modification in accordance with subsection (f) of this | 10 | | Section. The
strategies and practices adopted shall include | 11 | | but need not be limited to the
delivery of 5 year programs, | 12 | | annual programs, and the establishment of
coordination | 13 | | councils in the locales and with the utility participation | 14 | | that
will
best facilitate and accomplish the requirements of | 15 | | the State and county
highway authority acting under subsection | 16 | | (f) of this Section. The utility
participation shall include | 17 | | assisting the appropriate highway authority in
establishing a | 18 | | schedule for the removal, relocation, or modification of the
| 19 | | owner's facilities in accordance with subsection (f) of this | 20 | | Section. In
addition, each utility shall designate in writing | 21 | | to the Secretary of
Transportation or his or her designee an | 22 | | agent for notice and the delivery of
programs. The
| 23 | | coordination councils must be established on or before January
| 24 | | 1, 2002. The 90 day deadline for removal, relocation, or | 25 | | modification of the
ditches, drains, track, rails, poles, | 26 | | wires, pipe line, or other equipment in
subsection (f) of this |
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| 1 | | Section shall be enforceable upon the establishment of
a | 2 | | coordination council in the district or locale where the | 3 | | property in question
is located. The coordination councils | 4 | | organized by a county highway
authority shall include the | 5 | | county engineer, the County Board
Chairman or his or her | 6 | | designee, and with such utility participation as will
best
| 7 | | facilitate and accomplish the requirements of a highway | 8 | | authority acting under
subsection (f) of this Section. Should | 9 | | a county
highway authority decide not to establish | 10 | | coordination councils,
the 90 day deadline for removal, | 11 | | relocation, or modification
of the ditches, drains, track, | 12 | | rails, poles, wires, pipe line, or other
equipment
in | 13 | | subsection (f) of this Section shall be waived for those | 14 | | highways.
| 15 | | (c) In the case of non-toll federal-aid fully | 16 | | access-controlled State
highways, the State highway authority | 17 | | shall not grant consent to the
location, placement or | 18 | | construction of ditches, drains, track, rails,
poles, wires, | 19 | | pipe line or other equipment upon, under or along any such
| 20 | | non-toll federal-aid fully access-controlled State highway, | 21 | | which:
| 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 | 2 | | non-toll
federal-aid fully access-controlled State highways | 3 | | the State highway authority
may charge an entity reasonable | 4 | | compensation for the right of that entity to
longitudinally | 5 | | locate, place or construct ditches, drains, track, rails, | 6 | | poles,
wires,
pipe line or other equipment upon, under or | 7 | | along such highway. Such
compensation may include in-kind | 8 | | compensation.
| 9 | | Where the entity applying for use of a non-toll | 10 | | federal-aid fully
access-controlled State highway right-of-way | 11 | | is a public utility company,
municipal corporation or other | 12 | | public or private corporation, association
or person, such | 13 | | compensation shall be based upon but shall not exceed a
| 14 | | reasonable estimate by the State highway authority of the fair | 15 | | market value
of an easement or leasehold for such use of the | 16 | | highway right-of-way.
Where the State highway authority | 17 | | determines that the applied-for use of
such highway | 18 | | right-of-way is for private land uses by an individual and not
| 19 | | for commercial purposes, the State highway authority may | 20 | | charge a lesser fee
than would be charged a public utility | 21 | | company, municipal corporation or
other public or private | 22 | | corporation or association as compensation for the
use of the | 23 | | non-toll federal-aid fully access-controlled State highway
| 24 | | right-of-way. In no case shall the written consent of the | 25 | | State highway
authority give or be construed to give any | 26 | | entity any easement, leasehold
or other property interest of |
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| 1 | | any kind in, upon, under, above or along the
non-toll | 2 | | federal-aid fully access-controlled State highway | 3 | | right-of-way.
| 4 | | Where the compensation from any entity is in whole or in | 5 | | part a fee, such
fee may be reasonably set, at the election of | 6 | | the State highway authority,
in the form of a single lump sum | 7 | | payment or a schedule of payments.
All such fees charged as | 8 | | compensation may be reviewed and adjusted upward by
the State | 9 | | highway authority once every 5 years provided that any such
| 10 | | adjustment shall be based on changes in the fair market value | 11 | | of an easement
or leasehold for such use of the non-toll | 12 | | federal-aid fully
access-controlled State highway | 13 | | right-of-way. All such fees received as
compensation by the | 14 | | State highway authority shall be deposited in the Road Fund.
| 15 | | (e) Any entity applying for consent shall submit such | 16 | | information in
such form and detail to the appropriate highway | 17 | | authority as to allow the
authority to evaluate the entity's | 18 | | application. In the case of
accommodations upon, under or | 19 | | along non-toll federal-aid fully
access-controlled State | 20 | | highways the entity applying for such consent shall
reimburse | 21 | | the State highway authority for all of the authority's | 22 | | reasonable
expenses in evaluating that entity's application, | 23 | | including but not limited
to engineering and legal fees.
| 24 | | (f) Any ditches, drains, track, rails, poles, wires, pipe | 25 | | line, or
other
equipment located, placed, or constructed upon, | 26 | | under, or along a highway
with the consent of the State or |
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| 1 | | county highway authority under this
Section shall,
upon | 2 | | written notice by the State or county highway authority be
| 3 | | removed,
relocated, or modified by the owner, the owner's | 4 | | agents, contractors, or
employees at no expense to the State | 5 | | or county highway
authority when and as deemed necessary by | 6 | | the State or county highway
authority for highway
or highway | 7 | | safety purposes.
The notice shall be properly given after the | 8 | | completion of engineering plans,
the receipt of the necessary | 9 | | permits issued by the appropriate State and
county highway | 10 | | authority to begin work, and the establishment of sufficient
| 11 | | rights-of-way for a given utility authorized by the State or | 12 | | county highway
authority to remain on the highway right-of-way | 13 | | such that the unit of local
government or other owner of any | 14 | | facilities receiving notice in accordance
with this subsection | 15 | | (f) can proceed with relocating, replacing, or
reconstructing | 16 | | the ditches, drains, track, rails, poles, wires, pipe line, or
| 17 | | other
equipment. If a permit application to relocate on a | 18 | | public right-of-way is not
filed within 15 days of the receipt | 19 | | of final engineering plans, the notice
precondition of a | 20 | | permit to begin work is waived. However, under no
| 21 | | circumstances shall this notice provision be construed to | 22 | | require the State or
any
government department or agency to | 23 | | purchase additional
rights-of-way to accommodate utilities.
| 24 | | If, within 90 days after receipt of such
written notice,
the | 25 | | ditches, drains, track, rails, poles, wires, pipe line, or | 26 | | other
equipment
have not been removed, relocated, or modified |
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| 1 | | to the reasonable satisfaction
of the State or county highway | 2 | | authority, or if
arrangements are not made satisfactory to the | 3 | | State or county
highway authority for such removal, | 4 | | relocation, or modification, the State
or county
highway
| 5 | | authority may remove, relocate, or modify such ditches, | 6 | | drains, track,
rails, poles, wires, pipe line, or other | 7 | | equipment and bill the owner
thereof for the total cost of such | 8 | | removal, relocation, or modification.
The scope of the project | 9 | | shall be taken into consideration by the State or
county | 10 | | highway authority in determining satisfactory arrangements.
| 11 | | The State or county highway authority shall determine the | 12 | | terms of payment
of those costs
provided that all costs billed | 13 | | by the State or county highway authority
shall not be made
| 14 | | payable over more than a 5 year period from the date of | 15 | | billing.
The State and county highway authority shall have the | 16 | | power to extend the
time of payment in cases of demonstrated | 17 | | financial hardship by a unit of
local government or other | 18 | | public owner of any facilities removed, relocated,
or modified | 19 | | from the highway right-of-way in accordance with this
| 20 | | subsection (f).
This
paragraph shall not be construed to | 21 | | prohibit the State or county highway
authority
from paying any | 22 | | part of the cost of removal, relocation, or modification
where | 23 | | such payment is otherwise provided for by State or federal | 24 | | statute or
regulation.
At any time within 90 days after | 25 | | written notice was given, the owner of the
drains, track, | 26 | | rails, poles, wires, pipe line, or other equipment may request
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| 1 | | the district engineer or, if appropriate, the county engineer | 2 | | for a waiver of
the 90 day deadline. The appropriate district | 3 | | or county engineer shall make a
decision concerning waiver | 4 | | within 10 days of receipt of the request and may
waive the 90 | 5 | | day deadline if he or she makes a written finding as to the
| 6 | | reasons for waiving the deadline. Reasons for waiving the | 7 | | deadline shall be
limited to acts of God, war, the scope of the | 8 | | project, the State failing to
follow the proper notice
| 9 | | procedure, and any other cause beyond reasonable control of | 10 | | the owner of
the facilities. Waiver must not be unreasonably | 11 | | withheld. If 90 days after
written notice was given, the | 12 | | ditches, drains, track, rails, poles, wires, pipe
line, or | 13 | | other equipment have not been removed, relocated, or modified | 14 | | to
the satisfaction of the State or county highway authority, | 15 | | no waiver of
deadline has been requested or issued by the | 16 | | appropriate district or county
engineer, and no satisfactory | 17 | | arrangement has been made with the
appropriate State or county | 18 | | highway authority, the State or county highway
authority or | 19 | | the general contractor of the building project may file a
| 20 | | complaint in the circuit court for an emergency order to | 21 | | direct and compel
the owner to remove, relocate, or modify the | 22 | | drains, track, rails, poles,
wires,
pipe line, or other | 23 | | equipment to the satisfaction of the appropriate highway
| 24 | | authority. The complaint for an order shall be brought in the | 25 | | circuit in which
the subject matter of the complaint is | 26 | | situated or, if the subject matter of
the
complaint is |
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| 1 | | situated in more than one circuit, in any one of those
| 2 | | circuits.
| 3 | | (g) It shall be the sole responsibility of the entity, | 4 | | without expense to
the State highway authority, to maintain | 5 | | and repair its ditches,
drains, track, rails, poles, wires, | 6 | | pipe line or other equipment after it is
located, placed or | 7 | | constructed upon, under or along any State highway and in no
| 8 | | case shall the State highway authority thereafter be liable or | 9 | | responsible to
the
entity for any damages or liability of any | 10 | | kind whatsoever incurred by the
entity or to the entity's | 11 | | ditches, drains, track, rails, poles, wires, pipe
line or | 12 | | other equipment.
| 13 | | (h) Except as provided in subsection (h-1), upon receipt | 14 | | of an
application therefor,
consent to so use a highway may
be | 15 | | granted subject to such terms and conditions not inconsistent | 16 | | with
this Code as the highway authority deems for the best | 17 | | interest of the
public.
The terms and conditions required by | 18 | | the appropriate highway authority may
include but need not be | 19 | | limited to participation by the party granted consent
in the | 20 | | strategies and practices adopted under subsection (b) of this | 21 | | Section.
The
petitioner shall pay to the owners of property
| 22 | | abutting upon the affected highways established as though by
| 23 | | common law plat all damages the owners may sustain by reason of | 24 | | such use of
the highway, such damages to be ascertained and | 25 | | paid in the manner provided by
law for the exercise of the | 26 | | right of eminent domain.
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| 1 | | (h-1) With regard to any public utility, as defined in | 2 | | Section 3-105 of
the Public Utilities Act, engaged in public | 3 | | water or public sanitary sewer
service that comes under the | 4 | | jurisdiction of the Illinois Commerce Commission,
upon receipt | 5 | | of an application therefor,
consent to so use a highway may
be | 6 | | granted subject to such terms and conditions not inconsistent | 7 | | with
this Code as the highway authority deems for the best | 8 | | interest of the
public.
The terms and conditions required by | 9 | | the appropriate highway authority may
include but need not be | 10 | | limited to participation by the party granted consent
in the | 11 | | strategies and practices adopted under subsection (b) of this | 12 | | Section.
If the highway authority does not have fee ownership | 13 | | of the property, the
petitioner shall pay to the owners of | 14 | | property located in the highway
right-of-way
all damages the | 15 | | owners may sustain by reason of such use of
the highway, such | 16 | | damages to be ascertained and paid in the manner provided by
| 17 | | law for the exercise of the right of eminent domain. The | 18 | | consent shall not
otherwise relieve the entity granted that
| 19 | | consent from obtaining by purchase, condemnation, or otherwise | 20 | | the
necessary approval of any owner of the fee over or under | 21 | | which the
highway or road is located, except to the extent that | 22 | | no such owner has
paid real estate taxes on the property for | 23 | | the 2 years prior to the
grant of the consent. Owners of | 24 | | property that abuts the right-of-way but who
acquired the
| 25 | | property through a conveyance that either expressly excludes | 26 | | the property
subject to the right-of-way or that describes the |
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| 1 | | property conveyed as ending
at the right-of-way or being | 2 | | bounded by the right-of-way or road shall not be
considered | 3 | | owners of property located in the right-of-way and shall not | 4 | | be
entitled to damages by reason of the use of the highway or | 5 | | road for utility
purposes, except that this provision shall | 6 | | not relieve the public utility
from the
obligation to pay for | 7 | | any physical damage it causes to
improvements lawfully located | 8 | | in the right-of-way. Owners of abutting
property whose | 9 | | descriptions include the right-of-way but are made subject to
| 10 | | the right-of-way shall be entitled to compensation for use of | 11 | | the
right-of-way.
If the property subject to the right-of-way | 12 | | is not owned by the
owners of the abutting property (either | 13 | | because it is expressly excluded from
the property conveyed to | 14 | | an abutting property owner or the property as conveyed
ends at | 15 | | or is bounded by the right-of-way or road), then the | 16 | | petitioner shall
pay any damages, as so calculated, to
the | 17 | | person or persons who have paid real estate taxes for the | 18 | | property as
reflected in the
county tax records. If no person | 19 | | has paid real estate taxes, then the
public interest permits | 20 | | the installation of the facilities without payment of
any | 21 | | damages. This provision of this
amendatory Act of the 93rd | 22 | | General Assembly is intended to clarify, by
codification, | 23 | | existing law and is not intended to change the law.
| 24 | | (i) Such consent shall be granted by the Department in the | 25 | | case of a
State highway; by the county board or its designated | 26 | | county superintendent
of highways in the case of a county |
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| 1 | | highway; by
either the highway commissioner or the county | 2 | | superintendent of highways
in the case of a township or | 3 | | district road, provided that if consent is
granted by the | 4 | | highway commissioner, the petition shall be filed with
the | 5 | | commissioner at least 30 days prior to the proposed date of the
| 6 | | beginning of construction, and that if written consent is not | 7 | | given by
the commissioner within 30 days after receipt of the | 8 | | petition, the
applicant may make written application to the | 9 | | county superintendent of
highways for consent to the | 10 | | construction. In the case of township roads, the county | 11 | | superintendent of highways may either grant consent for the | 12 | | construction or deny the application. The county | 13 | | superintendent of highways shall provide written confirmation, | 14 | | citing the basis of the decision, to both the highway | 15 | | commissioner and the
applicant. This Section does not
vitiate, | 16 | | extend or otherwise affect any consent granted in accordance
| 17 | | with law prior to the effective date of this Code to so use any | 18 | | highway.
| 19 | | (j) Nothing in this Section shall limit the right of a | 20 | | highway
authority to permit the location, placement or | 21 | | construction or any ditches,
drains, track, rails, poles, | 22 | | wires, pipe line or other equipment upon,
under or along any | 23 | | highway or road as a part of its highway or road
facilities or | 24 | | which the highway authority determines is necessary to
service | 25 | | facilities required for operating the highway or road, | 26 | | including
rest areas and weigh stations.
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| 1 | | (k) Paragraphs (c) and (d) of this Section shall not apply | 2 | | to any
accommodation located, placed or constructed with the | 3 | | consent of the State
highway authority upon, under or along | 4 | | any non-toll federal-aid fully
access-controlled State
highway | 5 | | prior to July 1, 1984, provided that accommodation was | 6 | | otherwise
in compliance with the rules, regulations and | 7 | | specifications of the State
highway authority.
| 8 | | (l) Except as provided in subsection (l-1), the consent to | 9 | | be granted
pursuant to this Section by the appropriate
highway | 10 | | authority shall be effective only to the extent of the | 11 | | property
interest of the State or government unit served by | 12 | | that highway authority.
Such consent shall not be binding on | 13 | | any owner of the fee over or under which
the highway or road is | 14 | | located and shall not otherwise relieve the entity
granted | 15 | | that consent from obtaining by purchase, condemnation or | 16 | | otherwise
the necessary approval of any owner of the fee over | 17 | | or under which the highway
or road is located.
This paragraph | 18 | | shall
not be construed as a limitation on the use for highway | 19 | | or road purposes
of the land or other property interests | 20 | | acquired by the public for highway
or road purposes, including | 21 | | the space under or above such right-of-way.
| 22 | | (l-1) With regard to any public utility, as defined in | 23 | | Section 3-105 of
the
Public Utilities Act, engaged in public | 24 | | water or public sanitary sewer service
that comes under the | 25 | | jurisdiction of the Illinois Commerce Commission, the
consent | 26 | | to be granted pursuant to this Section by the appropriate
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| 1 | | highway authority shall be effective only to the extent of the | 2 | | property
interest of the State or government unit served by | 3 | | that highway authority.
Such consent shall not be binding on | 4 | | any owner of the fee over or under which
the highway or road is | 5 | | located but shall be binding on any abutting property
owner | 6 | | whose property boundary ends at the right-of-way of the | 7 | | highway or road.
For purposes of the preceding sentence, | 8 | | property that includes a portion of
a highway or road but is | 9 | | subject to the highway or road shall not be
considered to end | 10 | | at the highway or road.
The consent shall not otherwise | 11 | | relieve the entity
granted that consent from obtaining by | 12 | | purchase, condemnation or otherwise
the necessary approval of | 13 | | any owner of the fee over or under which the highway
or road is | 14 | | located, except to the extent that no such owner has paid real
| 15 | | estate taxes on the property for the 2 years prior to the grant | 16 | | of the
consent. This provision is not intended to absolve a | 17 | | utility from obtaining
consent
from a lawful owner of the | 18 | | roadway or highway property (i.e. a person whose
deed of | 19 | | conveyance lawfully includes the property, whether or not made | 20 | | subject
to the highway or road) but who does not pay taxes by | 21 | | reason of Division 6 of
Article 10 of the Property Tax Code.
| 22 | | This paragraph shall
not be construed as a limitation on the | 23 | | use for highway or road purposes
of the land or other property | 24 | | interests acquired by the public for highway
or road purposes, | 25 | | including the space under or above such right-of-way.
| 26 | | (m) The provisions of this Section apply to all permits |
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| 1 | | issued by the
Department of Transportation and the
appropriate | 2 | | State or county highway
authority.
| 3 | | (Source: P.A. 92-470, eff. 1-1-02; 93-357, eff. 1-1-04.)".
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