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92_HB5592eng HB5592 Engrossed LRB9215072BDks 1 AN ACT concerning highways. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 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 11 or constructed upon, under or along any highway, or upon any 12 township or district road, without first obtaining the 13 written consent of the appropriate highway authority as 14 hereinafter provided for in this Section. 15 (b) The State and county highway authorities are 16 authorized to promulgate reasonable and necessary rules, 17 regulations, and specifications for highways for the 18 administration of this Section. In addition to rules 19 promulgated under this subsection (b), the State highway 20 authority shall and a county highway authority may adopt 21 coordination strategies and practices designed and intended 22 to establish and implement effective communication respecting 23 planned highway projects that the State or county highway 24 authority believes may require removal, relocation, or 25 modification in accordance with subsection (f) of this 26 Section. The strategies and practices adopted shall include 27 but need not be limited to the delivery of 5 year programs, 28 annual programs, and the establishment of coordination 29 councils in the locales and with the utility participation 30 that will best facilitate and accomplish the requirements of 31 the State and county highway authority acting under HB5592 Engrossed -2- LRB9215072BDks 1 subsection (f) of this Section. The utility participation 2 shall include assisting the appropriate highway authority in 3 establishing a schedule for the removal, relocation, or 4 modification of the owner's facilities in accordance with 5 subsection (f) of this Section. In addition, each utility 6 shall designate in writing to the Secretary of Transportation 7 or his or her designee an agent for notice and the delivery 8 of programs. The coordination councils must be established on 9 or before January 1, 2002. The 90 day deadline for removal, 10 relocation, or modification of the ditches, drains, track, 11 rails, poles, wires, pipe line, or other equipment in 12 subsection (f) of this Section shall be enforceable upon the 13 establishment of a coordination council in the district or 14 locale where the property in question is located. The 15 coordination councils organized by a county highway authority 16 shall include the county engineer, the County Board Chairman 17 or his or her designee, and with such utility participation 18 as will best facilitate and accomplish the requirements of a 19 highway authority acting under subsection (f) of this 20 Section. Should a county highway authority decide not to 21 establish coordination councils, the 90 day deadline for 22 removal, relocation, or modification of the ditches, drains, 23 track, rails, poles, wires, pipe line, or other equipment in 24 subsection (f) of this Section shall be waived for those 25 highways. 26 (c) In the case of non-toll federal-aid fully 27 access-controlled State highways, the State highway authority 28 shall not grant consent to the location, placement or 29 construction of ditches, drains, track, rails, poles, wires, 30 pipe line or other equipment upon, under or along any such 31 non-toll federal-aid fully access-controlled State highway, 32 which: 33 (1) would require cutting the pavement structure 34 portion of such highway for installation or, except in HB5592 Engrossed -3- LRB9215072BDks 1 the event of an emergency, would require the use of any 2 part of such highway right-of-way for purposes of 3 maintenance or repair. Where, however, the State highway 4 authority determines prior to installation that there is 5 no other access available for maintenance or repair 6 purposes, use by the entity of such highway right-of-way 7 shall be permitted for such purposes in strict accordance 8 with the rules, regulations and specifications of the 9 State highway authority, provided however, that except in 10 the case of access to bridge structures, in no such case 11 shall an entity be permitted access from the 12 through-travel lanes, shoulders or ramps of the non-toll 13 federal-aid fully access-controlled State highway to 14 maintain or repair its accommodation; or 15 (2) would in the judgment of the State highway 16 authority, endanger or impair any such ditches, drains, 17 track, rails, poles, wires, pipe lines or other equipment 18 already in place; or 19 (3) would, if installed longitudinally within the 20 access control lines of such highway, be above ground 21 after installation except that the State highway 22 authority may consent to any above ground installation 23 upon, under or along any bridge, interchange or grade 24 separation within the right-of-way which installation is 25 otherwise in compliance with this Section and any rules, 26 regulations or specifications issued hereunder; or 27 (4) would be inconsistent with Federal law or with 28 rules, regulations or directives of appropriate Federal 29 agencies. 30 (d) In the case of accommodations upon, under or along 31 non-toll federal-aid fully access-controlled State highways 32 the State highway authority may charge an entity reasonable 33 compensation for the right of that entity to longitudinally 34 locate, place or construct ditches, drains, track, rails, HB5592 Engrossed -4- LRB9215072BDks 1 poles, wires, pipe line or other equipment upon, under or 2 along such highway. Such compensation may include in-kind 3 compensation. 4 Where the entity applying for use of a non-toll 5 federal-aid fully access-controlled State highway 6 right-of-way is a public utility company, municipal 7 corporation or other public or private corporation, 8 association or person, such compensation shall be based upon 9 but shall not exceed a reasonable estimate by the State 10 highway authority of the fair market value of an easement or 11 leasehold for such use of the highway right-of-way. Where the 12 State highway authority determines that the applied-for use 13 of such highway right-of-way is for private land uses by an 14 individual and not for commercial purposes, the State highway 15 authority may charge a lesser fee than would be charged a 16 public utility company, municipal corporation or other public 17 or private corporation or association as compensation for the 18 use of the non-toll federal-aid fully access-controlled State 19 highway right-of-way. In no case shall the written consent 20 of the State highway authority give or be construed to give 21 any entity any easement, leasehold or other property interest 22 of any kind in, upon, under, above or along the non-toll 23 federal-aid fully access-controlled State highway 24 right-of-way. 25 Where the compensation from any entity is in whole or in 26 part a fee, such fee may be reasonably set, at the election 27 of the State highway authority, in the form of a single lump 28 sum payment or a schedule of payments. All such fees charged 29 as compensation may be reviewed and adjusted upward by the 30 State highway authority once every 5 years provided that any 31 such adjustment shall be based on changes in the fair market 32 value of an easement or leasehold for such use of the 33 non-toll federal-aid fully access-controlled State highway 34 right-of-way. All such fees received as compensation by the HB5592 Engrossed -5- LRB9215072BDks 1 State highway authority shall be deposited in the Road Fund. 2 (e) Any entity applying for consent shall submit such 3 information in such form and detail to the appropriate 4 highway authority as to allow the authority to evaluate the 5 entity's application. In the case of accommodations upon, 6 under or along non-toll federal-aid fully access-controlled 7 State highways the entity applying for such consent shall 8 reimburse the State highway authority for all of the 9 authority's reasonable expenses in evaluating that entity's 10 application, including but not limited to engineering and 11 legal fees. 12 (f) Any ditches, drains, track, rails, poles, wires, 13 pipe line, or other equipment located, placed, or constructed 14 upon, under, or along a highway with the consent of the State 15 or county highway authority under this Section shall, upon 16 written notice by the State or county highway authority be 17 removed, relocated, or modified by the owner, the owner's 18 agents, contractors, or employees at no expense to the State 19 or county highway authority when and as deemed necessary by 20 the State or county highway authority for highway or highway 21 safety purposes. The notice shall be properly given after the 22 completion of engineering plans, the receipt of the necessary 23 permits issued by the appropriate State and county highway 24 authority to begin work, and the establishment of sufficient 25 rights-of-way for a given utility authorized by the State or 26 county highway authority to remain on the highway 27 right-of-way such that the unit of local government or other 28 owner of any facilities receiving notice in accordance with 29 this subsection (f) can proceed with relocating, replacing, 30 or reconstructing the ditches, drains, track, rails, poles, 31 wires, pipe line, or other equipment. If a permit 32 application to relocate on a public right-of-way is not filed 33 within 15 days of the receipt of final engineering plans, the 34 notice precondition of a permit to begin work is waived. HB5592 Engrossed -6- LRB9215072BDks 1 However, under no circumstances shall this notice provision 2 be construed to require the State or any government 3 department or agency to purchase additional rights-of-way to 4 accommodate utilities. If, within 90 days after receipt of 5 such written notice, the ditches, drains, track, rails, 6 poles, wires, pipe line, or other equipment have not been 7 removed, relocated, or modified to the reasonable 8 satisfaction of the State or county highway authority, or if 9 arrangements are not made satisfactory to the State or county 10 highway authority for such removal, relocation, or 11 modification, the State or county highway authority may 12 remove, relocate, or modify such ditches, drains, track, 13 rails, poles, wires, pipe line, or other equipment and bill 14 the owner thereof for the total cost of such removal, 15 relocation, or modification. The scope of the project shall 16 be taken into consideration by the State or county highway 17 authority in determining satisfactory arrangements. The State 18 or county highway authority shall determine the terms of 19 payment of those costs provided that all costs billed by the 20 State or county highway authority shall not be made payable 21 over more than a 5 year period from the date of billing. The 22 State and county highway authority shall have the power to 23 extend the time of payment in cases of demonstrated financial 24 hardship by a unit of local government or other public owner 25 of any facilities removed, relocated, or modified from the 26 highway right-of-way in accordance with this subsection (f). 27 This paragraph shall not be construed to prohibit the State 28 or county highway authority from paying any part of the cost 29 of removal, relocation, or modification where such payment is 30 otherwise provided for by State or federal statute or 31 regulation. At any time within 90 days after written notice 32 was given, the owner of the drains, track, rails, poles, 33 wires, pipe line, or other equipment may request the district 34 engineer or, if appropriate, the county engineer for a waiver HB5592 Engrossed -7- LRB9215072BDks 1 of the 90 day deadline. The appropriate district or county 2 engineer shall make a decision concerning waiver within 10 3 days of receipt of the request and may waive the 90 day 4 deadline if he or she makes a written finding as to the 5 reasons for waiving the deadline. Reasons for waiving the 6 deadline shall be limited to acts of God, war, the scope of 7 the project, the State failing to follow the proper notice 8 procedure, and any other cause beyond reasonable control of 9 the owner of the facilities. Waiver must not be unreasonably 10 withheld. If 90 days after written notice was given, the 11 ditches, drains, track, rails, poles, wires, pipe line, or 12 other equipment have not been removed, relocated, or modified 13 to the satisfaction of the State or county highway authority, 14 no waiver of deadline has been requested or issued by the 15 appropriate district or county engineer, and no satisfactory 16 arrangement has been made with the appropriate State or 17 county highway authority, the State or county highway 18 authority or the general contractor of the building project 19 may file a complaint in the circuit court for an emergency 20 order to direct and compel the owner to remove, relocate, or 21 modify the drains, track, rails, poles, wires, pipe line, or 22 other equipment to the satisfaction of the appropriate 23 highway authority. The complaint for an order shall be 24 brought in the circuit in which the subject matter of the 25 complaint is situated or, if the subject matter of the 26 complaint is situated in more than one circuit, in any one of 27 those circuits. 28 (g) It shall be the sole responsibility of the entity, 29 without expense to the State highway authority, to maintain 30 and repair its ditches, drains, track, rails, poles, wires, 31 pipe line or other equipment after it is located, placed or 32 constructed upon, under or along any State highway and in no 33 case shall the State highway authority thereafter be liable 34 or responsible to the entity for any damages or liability of HB5592 Engrossed -8- LRB9215072BDks 1 any kind whatsoever incurred by the entity or to the entity's 2 ditches, drains, track, rails, poles, wires, pipe line or 3 other equipment. 4 (h) Upon receipt of an application therefor, consent to 5 so use a highway may be granted subject to such terms and 6 conditions not inconsistent with this Code as the highway 7 authority deems for the best interest of the public. The 8 terms and conditions required by the appropriate highway 9 authority may include but need not be limited to 10 participation by the party granted consent in the strategies 11 and practices adopted under subsection (b) of this Section. 12 If the highway authority does not have fee ownership of the 13 property, the petitioner shall pay to the owners of property 14 located in the highway right-of-wayabutting upon the15affected highways established as though by common law plat16 all damages the owners may sustain by reason of such use of 17 the highway, such damages to be ascertained and paid in the 18 manner provided by law for the exercise of the right of 19 eminent domain. Owners of property that abuts the 20 right-of-way but who acquired the property through a 21 conveyance that either expressly excludes the property 22 subject to the right-of-way or that describes the property 23 conveyed as ending at the right-of-way or being bounded by 24 the right-of-way or road shall not be considered owners of 25 property located in the right-of-way and shall not be 26 entitled to damages by reason of the use of the highway or 27 road for utility purposes. If the property subject to the 28 right-of-way is not owned by the owners of the abutting 29 property (either because it is expressly excluded from the 30 property conveyed to an abutting property owner or the 31 property as conveyed ends at or is bounded by the 32 right-of-way or road), then the petitioner shall pay any 33 damages, as so calculated, to the person or persons who have 34 paid real estate taxes for the property as reflected in the HB5592 Engrossed -9- LRB9215072BDks 1 county tax records. If no person has paid real estate taxes, 2 then the public interest permits the installation of the 3 facilities without payment of any damages. This provision of 4 this amendatory Act of the 92nd General Assembly is intended 5 to clarify, by codification, existing law and is not intended 6 to change the law. 7 (i) Such consent shall be granted by the Department in 8 the case of a State highway; by the county board or its 9 designated county superintendent of highways in the case of a 10 county highway; by either the highway commissioner or the 11 county superintendent of highways in the case of a township 12 or district road, provided that if consent is granted by the 13 highway commissioner, the petition shall be filed with the 14 commissioner at least 30 days prior to the proposed date of 15 the beginning of construction, and that if written consent is 16 not given by the commissioner within 30 days after receipt 17 of the petition, the applicant may make written application 18 to the county superintendent of highways for consent to the 19 construction. This Section does not vitiate, extend or 20 otherwise affect any consent granted in accordance with law 21 prior to the effective date of this Code to so use any 22 highway. 23 (j) Nothing in this Section shall limit the right of a 24 highway authority to permit the location, placement or 25 construction or any ditches, drains, track, rails, poles, 26 wires, pipe line or other equipment upon, under or along any 27 highway or road as a part of its highway or road facilities 28 or which the highway authority determines is necessary to 29 service facilities required for operating the highway or 30 road, including rest areas and weigh stations. 31 (k) Paragraphs (c) and (d) of this Section shall not 32 apply to any accommodation located, placed or constructed 33 with the consent of the State highway authority upon, under 34 or along any non-toll federal-aid fully access-controlled HB5592 Engrossed -10- LRB9215072BDks 1 State highway prior to July 1, 1984, provided that 2 accommodation was otherwise in compliance with the rules, 3 regulations and specifications of the State highway 4 authority. 5 (l) The consent to be granted pursuant to this Section 6 by the appropriate highway authority shall be effective only 7 to the extent of the property interest of the State or 8 government unit served by that highway authority. Such 9 consent shall not be binding on any owner of the fee over or 10 under which the highway or road is located but shall be 11 binding on any abutting property owner whose property 12 boundary ends at the right-of-way of the highway or road. 13 The consentandshall not otherwise relieve the entity 14 granted that consent from obtaining by purchase, condemnation 15 or otherwise the necessary approval of any owner of the fee 16 over or under which the highway or road is located, except to 17 the extent that no such owner has paid real estate taxes on 18 the property for the 2 years prior to the grant of the 19 consent. This paragraph shall not be construed as a 20 limitation on the use for highway or road purposes of the 21 land or other property interests acquired by the public for 22 highway or road purposes, including the space under or above 23 such right-of-way. 24 (m) The provisions of this Section apply to all permits 25 issued by the Department of Transportation and the 26 appropriate State or county highway authority. 27 (Source: P.A. 92-470, eff. 1-1-02.) 28 Section 10. The Conveyances Act is amended by changing 29 Section 7a as follows: 30 (765 ILCS 5/7a) (from Ch. 30, par. 6a) 31 Sec. 7a. Any instrument, including a will, which 32 conveys, transfers, encumbers, leases or releases, or by HB5592 Engrossed -11- LRB9215072BDks 1 which an agreement is made to convey, transfer, encumber, 2 lease or release, or by virtue of which there is conveyed, 3 transferred, encumbered, leased or released, any real 4 property, whether described by a metes and bounds description 5 or otherwise, which abuts upon any road, street, highway or 6 alley, or upon any abandoned or vacated road, street, highway 7 or alley shall be deemed and construed to include any right, 8 title or interest in that part of such road, street, highway 9 or alley which the abutting owner who makes any such 10 instrument shall presently have or, which such owner, his 11 heirs, successors and assigns subsequently acquires in such 12 road, street, highway or alley unless such instrument by its 13 terms expressly excludes, in the description of the property, 14 such road, street, highway or alley. The right, title or 15 interest acquired under such instrument in such road, street, 16 highway or alley, by virtue of the provisions of this Act, 17 shall be deemed and construed to be for the same uses and 18 purposes set forth in such instrument with respect to the 19 real property specifically described in the instrument. 20 However, no covenants or agreements made by the maker of any 21 such instrument with respect to any real property 22 specifically described shall apply to or be enforceable with 23 respect to any right, title or interest which is acquired 24 solely by virtue of the provisions of this Act. "Conveyance" 25 expressly excludes a road, street, highway, or alley if the 26 legal description of the property uses the boundary of the 27 road, street, highway, or alley closest to the property being 28 conveyed as a boundary of the property being conveyed. This 29 provision of this amendatory Act of the 92nd General Assembly 30 is intended to clarify, by codification, existing law and is 31 not intended to change the law. 32 (Source: P.A. 76-1660.)