Full Text of SB3459 096th General Assembly
SB3459 96TH GENERAL ASSEMBLY
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96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 SB3459
Introduced 2/10/2010, by Sen. Antonio Muñoz SYNOPSIS AS INTRODUCED: |
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605 ILCS 5/9-113 |
from Ch. 121, par. 9-113 |
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Amends the Illinois Highway Code. Provides that each property owner that has been given consent under a provision of the Illinois Highway Code to locate, place or construct upon, under or along any highway, any ditch, drain, track, rail, pole, wire, pipe line, or other equipment shall identify, upon request of the State or county, the vertical depth and horizontal alignment of such ditch, drain, track, rail, pole, wire, pipe line, or other equipment. Provides that if the owner fails to comply with this amendatory Act, the State or county highway authority having jurisdiction shall contract for services to locate the depth and alignment and bill the owner thereof for the total cost of the services, in addition to any claims paid to contractors for damages, including project overhead, down-time, and remobilization of labor and equipment costs in accordance with compensation provided for in the Illinois Department of Transportation Standard Specifications for Road and Bridge Construction manual. Effective immediately.
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A BILL FOR
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SB3459 |
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LRB096 18766 AJT 34151 b |
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| AN ACT concerning transportation.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Illinois Highway Code is amended by changing | 5 |
| Section 9-113 as follows:
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| (605 ILCS 5/9-113) (from Ch. 121, par. 9-113)
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| 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
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| township or district road, without first obtaining the written | 13 |
| consent of the
appropriate highway authority as hereinafter | 14 |
| provided for in this
Section.
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| (b) The State and county highway authorities are
authorized | 16 |
| to promulgate
reasonable and necessary rules, regulations, and | 17 |
| specifications for
highways for the administration of this | 18 |
| Section.
In addition to rules promulgated under this subsection | 19 |
| (b), the State highway
authority shall and a county highway | 20 |
| authority may adopt coordination
strategies and practices | 21 |
| designed and intended to establish and implement
effective | 22 |
| communication respecting planned highway projects that the
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| State or county highway authority believes may require removal, |
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SB3459 |
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LRB096 18766 AJT 34151 b |
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| relocation,
or modification in accordance with subsection (f) | 2 |
| of this Section. The
strategies and practices adopted shall | 3 |
| include but need not be limited to the
delivery of 5 year | 4 |
| programs, annual programs, and the establishment of
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| coordination councils in the locales and with the utility | 6 |
| participation that
will
best facilitate and accomplish the | 7 |
| requirements of the State and county
highway authority acting | 8 |
| under subsection (f) of this Section. The utility
participation | 9 |
| shall include assisting the appropriate highway authority in
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| establishing a schedule for the removal, relocation, or | 11 |
| modification of the
owner's facilities in accordance with | 12 |
| subsection (f) of this Section. In
addition, each utility shall | 13 |
| designate in writing to the Secretary of
Transportation or his | 14 |
| or her designee an agent for notice and the delivery of
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| programs. The
coordination councils must be established on or | 16 |
| before January
1, 2002. The 90 day deadline for removal, | 17 |
| relocation, or modification of the
ditches, drains, track, | 18 |
| rails, poles, wires, pipe line, or other equipment in
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| subsection (f) of this Section shall be enforceable upon the | 20 |
| establishment of
a coordination council in the district or | 21 |
| locale where the property in question
is located. The | 22 |
| coordination councils organized by a county highway
authority | 23 |
| shall include the county engineer, the County Board
Chairman or | 24 |
| his or her designee, and with such utility participation as | 25 |
| will
best
facilitate and accomplish the requirements of a | 26 |
| highway authority acting under
subsection (f) of this Section. |
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LRB096 18766 AJT 34151 b |
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| Should a county
highway authority decide not to establish | 2 |
| coordination councils,
the 90 day deadline for removal, | 3 |
| relocation, or modification
of the ditches, drains, track, | 4 |
| rails, poles, wires, pipe line, or other
equipment
in | 5 |
| subsection (f) of this Section shall be waived for those | 6 |
| highways.
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| (c) In the case of non-toll federal-aid fully | 8 |
| access-controlled State
highways, the State highway authority | 9 |
| shall not grant consent to the
location, placement or | 10 |
| construction of ditches, drains, track, rails,
poles, wires, | 11 |
| pipe line or other equipment upon, under or along any such
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| non-toll federal-aid fully access-controlled State highway, | 13 |
| which:
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| (1) would require cutting the pavement structure | 15 |
| portion of such
highway for installation or, except in the | 16 |
| event of an emergency, would
require the use of any part of | 17 |
| such highway right-of-way for purposes of
maintenance or | 18 |
| repair. Where, however, the State highway authority
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| determines prior to installation that there is no other | 20 |
| access available for
maintenance or repair purposes, use by | 21 |
| the entity of such highway right-of-way
shall be permitted | 22 |
| for such purposes in strict accordance with the rules,
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| regulations and specifications of the State highway | 24 |
| authority, provided
however, that except in the case of | 25 |
| access to bridge structures, in no such
case shall an | 26 |
| entity be permitted access from the through-travel lanes,
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LRB096 18766 AJT 34151 b |
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| shoulders or ramps of the non-toll federal-aid fully | 2 |
| access-controlled
State highway to maintain or repair its | 3 |
| accommodation; or
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| (2) would in the judgment of the State highway | 5 |
| authority, endanger or
impair any such ditches, drains, | 6 |
| track, rails, poles, wires, pipe lines or
other equipment | 7 |
| already in place; or
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| (3) would, if installed longitudinally within the | 9 |
| access control lines
of such highway, be above ground after | 10 |
| installation except that the State
highway authority may | 11 |
| consent to any above ground installation upon, under
or | 12 |
| along any bridge, interchange or grade separation within | 13 |
| the
right-of-way which installation is otherwise in | 14 |
| compliance with this
Section and any rules, regulations or | 15 |
| specifications issued hereunder; or
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| (4) would be inconsistent with Federal law or with | 17 |
| rules, regulations or
directives of appropriate Federal | 18 |
| agencies.
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| (d) In the case of accommodations upon, under or along | 20 |
| non-toll
federal-aid fully access-controlled State highways | 21 |
| the State highway authority
may charge an entity reasonable | 22 |
| compensation for the right of that entity to
longitudinally | 23 |
| locate, place or construct ditches, drains, track, rails, | 24 |
| poles,
wires,
pipe line or other equipment upon, under or along | 25 |
| such highway. Such
compensation may include in-kind | 26 |
| compensation.
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LRB096 18766 AJT 34151 b |
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| Where the entity applying for use of a non-toll federal-aid | 2 |
| fully
access-controlled State highway right-of-way is a public | 3 |
| utility company,
municipal corporation or other public or | 4 |
| private corporation, association
or person, such compensation | 5 |
| shall be based upon but shall not exceed a
reasonable estimate | 6 |
| by the State highway authority of the fair market value
of an | 7 |
| easement or leasehold for such use of the highway right-of-way.
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| Where the State highway authority determines that the | 9 |
| applied-for use of
such highway right-of-way is for private | 10 |
| land uses by an individual and not
for commercial purposes, the | 11 |
| State highway authority may charge a lesser fee
than would be | 12 |
| charged a public utility company, municipal corporation or
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| other public or private corporation or association as | 14 |
| compensation for the
use of the non-toll federal-aid fully | 15 |
| access-controlled State highway
right-of-way. In no case shall | 16 |
| the written consent of the State highway
authority give or be | 17 |
| construed to give any entity any easement, leasehold
or other | 18 |
| property interest of any kind in, upon, under, above or along | 19 |
| the
non-toll federal-aid fully access-controlled State highway | 20 |
| right-of-way.
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| Where the compensation from any entity is in whole or in | 22 |
| part a fee, such
fee may be reasonably set, at the election of | 23 |
| the State highway authority,
in the form of a single lump sum | 24 |
| payment or a schedule of payments.
All such fees charged as | 25 |
| compensation may be reviewed and adjusted upward by
the State | 26 |
| highway authority once every 5 years provided that any such
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LRB096 18766 AJT 34151 b |
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| adjustment shall be based on changes in the fair market value | 2 |
| of an easement
or leasehold for such use of the non-toll | 3 |
| federal-aid fully
access-controlled State highway | 4 |
| right-of-way. All such fees received as
compensation by the | 5 |
| State highway authority shall be deposited in the Road Fund.
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| (e) Any entity applying for consent shall submit such | 7 |
| information in
such form and detail to the appropriate highway | 8 |
| authority as to allow the
authority to evaluate the entity's | 9 |
| application. In the case of
accommodations upon, under or along | 10 |
| non-toll federal-aid fully
access-controlled State highways | 11 |
| the entity applying for such consent shall
reimburse the State | 12 |
| highway authority for all of the authority's reasonable
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| expenses in evaluating that entity's application, including | 14 |
| but not limited
to engineering and legal fees.
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| (f) Any ditches, drains, track, rails, poles, wires, pipe | 16 |
| line, or
other
equipment located, placed, or constructed upon, | 17 |
| under, or along a highway
with the consent of the State or | 18 |
| county highway authority under this
Section shall,
upon written | 19 |
| notice by the State or county highway authority be
removed,
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| relocated, or modified by the owner, the owner's agents, | 21 |
| contractors, or
employees at no expense to the State or county | 22 |
| highway
authority when and as deemed necessary by the State or | 23 |
| county highway
authority for highway
or highway safety | 24 |
| purposes.
The notice shall be properly given after the | 25 |
| completion of engineering plans,
the receipt of the necessary | 26 |
| permits issued by the appropriate State and
county highway |
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LRB096 18766 AJT 34151 b |
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| authority to begin work, and the establishment of sufficient
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| rights-of-way for a given utility authorized by the State or | 3 |
| county highway
authority to remain on the highway right-of-way | 4 |
| such that the unit of local
government or other owner of any | 5 |
| facilities receiving notice in accordance
with this subsection | 6 |
| (f) can proceed with relocating, replacing, or
reconstructing | 7 |
| the ditches, drains, track, rails, poles, wires, pipe line, or
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| other
equipment. If a permit application to relocate on a | 9 |
| public right-of-way is not
filed within 15 days of the receipt | 10 |
| of final engineering plans, the notice
precondition of a permit | 11 |
| to begin work is waived. However, under no
circumstances shall | 12 |
| this notice provision be construed to require the State or
any
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| government department or agency to purchase additional
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| rights-of-way to accommodate utilities.
If, within 90 days | 15 |
| after receipt of such
written notice,
the ditches, drains, | 16 |
| track, rails, poles, wires, pipe line, or other
equipment
have | 17 |
| not been removed, relocated, or modified to the reasonable | 18 |
| satisfaction
of the State or county highway authority, or if
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| arrangements are not made satisfactory to the State or county
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| highway authority for such removal, relocation, or | 21 |
| modification, the State
or county
highway
authority may remove, | 22 |
| relocate, or modify such ditches, drains, track,
rails, poles, | 23 |
| wires, pipe line, or other equipment and bill the owner
thereof | 24 |
| for the total cost of such removal, relocation, or | 25 |
| modification.
The scope of the project shall be taken into | 26 |
| consideration by the State or
county highway authority in |
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SB3459 |
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LRB096 18766 AJT 34151 b |
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| determining satisfactory arrangements.
The State or county | 2 |
| highway authority shall determine the terms of payment
of those | 3 |
| costs
provided that all costs billed by the State or county | 4 |
| highway authority
shall not be made
payable over more than a 5 | 5 |
| year period from the date of billing.
The State and county | 6 |
| highway authority shall have the power to extend the
time of | 7 |
| payment in cases of demonstrated financial hardship by a unit | 8 |
| of
local government or other public owner of any facilities | 9 |
| removed, relocated,
or modified from the highway right-of-way | 10 |
| in accordance with this
subsection (f).
This
paragraph shall | 11 |
| not be construed to prohibit the State or county highway
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| authority
from paying any part of the cost of removal, | 13 |
| relocation, or modification
where such payment is otherwise | 14 |
| provided for by State or federal statute or
regulation.
At any | 15 |
| time within 90 days after written notice was given, the owner | 16 |
| of the
drains, track, rails, poles, wires, pipe line, or other | 17 |
| equipment may request
the district engineer or, if appropriate, | 18 |
| the county engineer for a waiver of
the 90 day deadline. The | 19 |
| appropriate district or county engineer shall make a
decision | 20 |
| concerning waiver within 10 days of receipt of the request and | 21 |
| may
waive the 90 day deadline if he or she makes a written | 22 |
| finding as to the
reasons for waiving the deadline. Reasons for | 23 |
| waiving the deadline shall be
limited to acts of God, war, the | 24 |
| scope of the project, the State failing to
follow the proper | 25 |
| notice
procedure, and any other cause beyond reasonable control | 26 |
| of the owner of
the facilities. Waiver must not be unreasonably |
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SB3459 |
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LRB096 18766 AJT 34151 b |
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| withheld. If 90 days after
written notice was given, the | 2 |
| ditches, drains, track, rails, poles, wires, pipe
line, or | 3 |
| other equipment have not been removed, relocated, or modified | 4 |
| to
the satisfaction of the State or county highway authority, | 5 |
| no waiver of
deadline has been requested or issued by the | 6 |
| appropriate district or county
engineer, and no satisfactory | 7 |
| arrangement has been made with the
appropriate State or county | 8 |
| highway authority, the State or county highway
authority or the | 9 |
| general contractor of the building project may file a
complaint | 10 |
| in the circuit court for an emergency order to direct and | 11 |
| compel
the owner to remove, relocate, or modify the drains, | 12 |
| track, rails, poles,
wires,
pipe line, or other equipment to | 13 |
| the satisfaction of the appropriate highway
authority. The | 14 |
| complaint for an order shall be brought in the circuit in which
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| the subject matter of the complaint is situated or, if the | 16 |
| subject matter of
the
complaint is situated in more than one | 17 |
| circuit, in any one of those
circuits.
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| (f-5) Each owner that has been given consent under this | 19 |
| Section to locate, place or construct upon, under or along any | 20 |
| highway, any ditch, drain, track, rail, pole, wire, pipe line, | 21 |
| or other equipment shall identify, upon request of the State or | 22 |
| county, the vertical depth and horizontal alignment of such | 23 |
| ditch, drain, track, rail, pole, wire, pipe line, or other | 24 |
| equipment. If the owner fails to comply with this subsection, | 25 |
| the State or county highway authority having jurisdiction shall | 26 |
| contract for services to locate the depth and alignment and |
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LRB096 18766 AJT 34151 b |
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| bill the owner thereof for the total cost of the services, in | 2 |
| addition to any claims paid to contractors for damages, | 3 |
| including project overhead, down-time, and remobilization of | 4 |
| labor and equipment costs in accordance with compensation | 5 |
| provided for in the Illinois Department of Transportation | 6 |
| Standard Specifications for Road and Bridge Construction | 7 |
| manual. | 8 |
| (g) It shall be the sole responsibility of the entity, | 9 |
| without expense to
the State highway authority, to maintain and | 10 |
| repair its ditches,
drains, track, rails, poles, wires, pipe | 11 |
| line or other equipment after it is
located, placed or | 12 |
| constructed upon, under or along any State highway and in no
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| case shall the State highway authority thereafter be liable or | 14 |
| responsible to
the
entity for any damages or liability of any | 15 |
| kind whatsoever incurred by the
entity or to the entity's | 16 |
| ditches, drains, track, rails, poles, wires, pipe
line or other | 17 |
| equipment.
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| (h) Except as provided in subsection (h-1), upon receipt of | 19 |
| an
application therefor,
consent to so use a highway may
be | 20 |
| granted subject to such terms and conditions not inconsistent | 21 |
| with
this Code as the highway authority deems for the best | 22 |
| interest of the
public.
The terms and conditions required by | 23 |
| the appropriate highway authority may
include but need not be | 24 |
| limited to participation by the party granted consent
in the | 25 |
| strategies and practices adopted under subsection (b) of this | 26 |
| Section.
The
petitioner shall pay to the owners of property
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SB3459 |
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LRB096 18766 AJT 34151 b |
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| abutting upon the affected highways established as though by
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| common law plat all damages the owners may sustain by reason of | 3 |
| such use of
the highway, such damages to be ascertained and | 4 |
| paid in the manner provided by
law for the exercise of the | 5 |
| right of eminent domain.
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| (h-1) With regard to any public utility, as defined in | 7 |
| Section 3-105 of
the Public Utilities Act, engaged in public | 8 |
| water or public sanitary sewer
service that comes under the | 9 |
| jurisdiction of the Illinois Commerce Commission,
upon receipt | 10 |
| of an application therefor,
consent to so use a highway may
be | 11 |
| granted subject to such terms and conditions not inconsistent | 12 |
| with
this Code as the highway authority deems for the best | 13 |
| interest of the
public.
The terms and conditions required by | 14 |
| the appropriate highway authority may
include but need not be | 15 |
| limited to participation by the party granted consent
in the | 16 |
| strategies and practices adopted under subsection (b) of this | 17 |
| Section.
If the highway authority does not have fee ownership | 18 |
| of the property, the
petitioner shall pay to the owners of | 19 |
| property located in the highway
right-of-way
all damages the | 20 |
| owners may sustain by reason of such use of
the highway, such | 21 |
| damages to be ascertained and paid in the manner provided by
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| law for the exercise of the right of eminent domain. The | 23 |
| consent shall not
otherwise relieve the entity granted that
| 24 |
| consent from obtaining by purchase, condemnation, or otherwise | 25 |
| the
necessary approval of any owner of the fee over or under | 26 |
| which the
highway or road is located, except to the extent that |
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LRB096 18766 AJT 34151 b |
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| no such owner has
paid real estate taxes on the property for | 2 |
| the 2 years prior to the
grant of the consent. Owners of | 3 |
| property that abuts the right-of-way but who
acquired the
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| property through a conveyance that either expressly excludes | 5 |
| the property
subject to the right-of-way or that describes the | 6 |
| property conveyed as ending
at the right-of-way or being | 7 |
| bounded by the right-of-way or road shall not be
considered | 8 |
| owners of property located in the right-of-way and shall not be
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| entitled to damages by reason of the use of the highway or road | 10 |
| for utility
purposes, except that this provision shall not | 11 |
| relieve the public utility
from the
obligation to pay for any | 12 |
| physical damage it causes to
improvements lawfully located in | 13 |
| the right-of-way. Owners of abutting
property whose | 14 |
| descriptions include the right-of-way but are made subject to
| 15 |
| the right-of-way shall be entitled to compensation for use of | 16 |
| the
right-of-way.
If the property subject to the right-of-way | 17 |
| is not owned by the
owners of the abutting property (either | 18 |
| because it is expressly excluded from
the property conveyed to | 19 |
| an abutting property owner or the property as conveyed
ends at | 20 |
| or is bounded by the right-of-way or road), then the petitioner | 21 |
| shall
pay any damages, as so calculated, to
the person or | 22 |
| persons who have paid real estate taxes for the property as
| 23 |
| reflected in the
county tax records. If no person has paid real | 24 |
| estate taxes, then the
public interest permits the installation | 25 |
| of the facilities without payment of
any damages. This | 26 |
| provision of this
amendatory Act of the 93rd General Assembly |
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SB3459 |
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LRB096 18766 AJT 34151 b |
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| is intended to clarify, by
codification, existing law and is | 2 |
| not intended to change the law.
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| (i) Such consent shall be granted by the Department in the | 4 |
| case of a
State highway; by the county board or its designated | 5 |
| county superintendent
of highways in the case of a county | 6 |
| highway; by
either the highway commissioner or the county | 7 |
| superintendent of highways
in the case of a township or | 8 |
| district road, provided that if consent is
granted by the | 9 |
| highway commissioner, the petition shall be filed with
the | 10 |
| commissioner at least 30 days prior to the proposed date of the
| 11 |
| beginning of construction, and that if written consent is not | 12 |
| given by
the commissioner within 30 days after receipt of the | 13 |
| petition, the
applicant may make written application to the | 14 |
| county superintendent of
highways for consent to the | 15 |
| construction. This Section does not
vitiate, extend or | 16 |
| otherwise affect any consent granted in accordance
with law | 17 |
| prior to the effective date of this Code to so use any highway.
| 18 |
| (j) Nothing in this Section shall limit the right of a | 19 |
| highway
authority to permit the location, placement or | 20 |
| construction or any ditches,
drains, track, rails, poles, | 21 |
| wires, pipe line or other equipment upon,
under or along any | 22 |
| highway or road as a part of its highway or road
facilities or | 23 |
| which the highway authority determines is necessary to
service | 24 |
| facilities required for operating the highway or road, | 25 |
| including
rest areas and weigh stations.
| 26 |
| (k) Paragraphs (c) and (d) of this Section shall not apply |
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SB3459 |
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LRB096 18766 AJT 34151 b |
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| to any
accommodation located, placed or constructed with the | 2 |
| consent of the State
highway authority upon, under or along any | 3 |
| non-toll federal-aid fully
access-controlled State
highway | 4 |
| prior to July 1, 1984, provided that accommodation was | 5 |
| otherwise
in compliance with the rules, regulations and | 6 |
| specifications of the State
highway authority.
| 7 |
| (l) Except as provided in subsection (l-1), the consent to | 8 |
| be granted
pursuant to this Section by the appropriate
highway | 9 |
| authority shall be effective only to the extent of the property
| 10 |
| interest of the State or government unit served by that highway | 11 |
| authority.
Such consent shall not be binding on any owner of | 12 |
| the fee over or under which
the highway or road is located and | 13 |
| shall not otherwise relieve the entity
granted that consent | 14 |
| from obtaining by purchase, condemnation or otherwise
the | 15 |
| necessary approval of any owner of the fee over or under which | 16 |
| the highway
or road is located.
This paragraph shall
not be | 17 |
| construed as a limitation on the use for highway or road | 18 |
| purposes
of the land or other property interests acquired by | 19 |
| the public for highway
or road purposes, including the space | 20 |
| under or above such right-of-way.
| 21 |
| (l-1) With regard to any public utility, as defined in | 22 |
| Section 3-105 of
the
Public Utilities Act, engaged in public | 23 |
| water or public sanitary sewer service
that comes under the | 24 |
| jurisdiction of the Illinois Commerce Commission, the
consent | 25 |
| to be granted pursuant to this Section by the appropriate
| 26 |
| highway authority shall be effective only to the extent of the |
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SB3459 |
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LRB096 18766 AJT 34151 b |
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| property
interest of the State or government unit served by | 2 |
| that highway authority.
Such consent shall not be binding on | 3 |
| any owner of the fee over or under which
the highway or road is | 4 |
| located but shall be binding on any abutting property
owner | 5 |
| whose property boundary ends at the right-of-way of the highway | 6 |
| or road.
For purposes of the preceding sentence, property that | 7 |
| includes a portion of
a highway or road but is subject to the | 8 |
| highway or road shall not be
considered to end at the highway | 9 |
| or road.
The consent shall not otherwise relieve the entity
| 10 |
| granted that consent from obtaining by purchase, condemnation | 11 |
| or otherwise
the necessary approval of any owner of the fee | 12 |
| over or under which the highway
or road is located, except to | 13 |
| the extent that no such owner has paid real
estate taxes on the | 14 |
| property for the 2 years prior to the grant of the
consent. | 15 |
| This provision is not intended to absolve a utility from | 16 |
| obtaining
consent
from a lawful owner of the roadway or highway | 17 |
| property (i.e. a person whose
deed of conveyance lawfully | 18 |
| includes the property, whether or not made subject
to the | 19 |
| highway or road) but who does not pay taxes by reason of | 20 |
| Division 6 of
Article 10 of the Property Tax Code.
This | 21 |
| paragraph shall
not be construed as a limitation on the use for | 22 |
| highway or road purposes
of the land or other property | 23 |
| interests acquired by the public for highway
or road purposes, | 24 |
| including the space under or above such right-of-way.
| 25 |
| (m) The provisions of this Section apply to all permits | 26 |
| issued by the
Department of Transportation and the
appropriate |
|
|
|
SB3459 |
- 16 - |
LRB096 18766 AJT 34151 b |
|
| 1 |
| State or county highway
authority.
| 2 |
| (Source: P.A. 92-470, eff. 1-1-02; 93-357, eff. 1-1-04.)
| 3 |
| Section 99. Effective date. This Act takes effect upon | 4 |
| becoming law.
|
|