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92_SB0699enr SB699 Enrolled LRB9207709DHmb 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 16authority isauthorized to promulgate reasonable and 17 necessary rules, regulations, and specifications forState18 highways for the administration of this Section. In addition 19 to rules promulgated under this subsection (b), the State 20 highway authority shall and a county highway authority may 21 adopt coordination strategies and practices designed and 22 intended to establish and implement effective communication 23 respecting planned highway projects that the State or county 24 highway authority believes may require removal, relocation, 25 or 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 SB699 Enrolled -2- LRB9207709DHmb 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 SB699 Enrolled -3- LRB9207709DHmb 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, SB699 Enrolled -4- LRB9207709DHmb 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 12 the State highway authority determines that the applied-for 13 use of such highway right-of-way is for private land uses by 14 an individual and not for commercial purposes, the State 15 highway authority may charge a lesser fee than would be 16 charged a public utility company, municipal corporation or 17 other public or private corporation or association as 18 compensation for the use of the non-toll federal-aid fully 19 access-controlled State highway right-of-way. In no case 20 shall the written consent of the State highway authority give 21 or be construed to give any entity any easement, leasehold or 22 other property interest of any kind in, upon, under, above or 23 along the non-toll federal-aid fully access-controlled State 24 highway 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 SB699 Enrolled -5- LRB9207709DHmb 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 aStatehighway with the consent of the 15 State or county highway authority under this Section shall, 16 upon written notice by the State or county,highway authority 17 be removed, relocated, or modified by the owner, the owner's 18 agents, contractors, or employeessubject to removal,19relocation or modificationat no expense to the State or 20 county highway authority when and as deemed necessary by the 21 State or county highway authority for highway or highway 22 safety purposes. The notice shall be properly given after the 23 completion of engineering plans, the receipt of the necessary 24 permits issued by the appropriate State and county highway 25 authority to begin work, and the establishment of sufficient 26 rights-of-way for a given utility authorized by the State or 27 county highway authority to remain on the highway 28 right-of-way such that the unit of local government or other 29 owner of any facilities receiving notice in accordance with 30 this subsection (f) can proceed with relocating, replacing, 31 or reconstructing the ditches, drains, track, rails, poles, 32 wires, pipe line, or other equipment. If a permit 33 application to relocate on a public right-of-way is not filed 34 within 15 days of the receipt of final engineering plans, the SB699 Enrolled -6- LRB9207709DHmb 1 notice precondition of a permit to begin work is waived. 2 However, under no circumstances shall this notice provision 3 be construed to require the State or any government 4 department or agency to purchase additional rights-of-way to 5 accommodate utilities. If, within 9060days after receipt of 6 such written notice, the ditches, drains, track, rails, 7 poles, wires, pipe line, or other equipment have not been 8 removed, relocated, or modified to the reasonable 9 satisfaction of the State or county highway authority, or if 10 arrangements are not made satisfactory to the State or county 11 highway authority for such removal, relocation, or 12 modification, the State or county highway authority may 13 remove, relocate, or modify such ditches, drains, track, 14 rails, poles, wires, pipe line, or other equipment and bill 15 the owner thereof for the total cost of such removal, 16 relocation, or modification. The scope of the project shall 17 be taken into consideration by the State or county highway 18 authority in determining satisfactory arrangements. The State 19 or county highway authority shall determine the terms of 20 payment of those costs provided that all costs billed by the 21 State or county highway authority shall not be made payable 22 over more than a 5 year period from the date of billing. The 23 State and county highway authority shall have the power to 24 extend the time of payment in cases of demonstrated financial 25 hardship by a unit of local government or other public owner 26 of any facilities removed, relocated, or modified from the 27 highway right-of-way in accordance with this subsection (f). 28 This paragraph shall not be construed to prohibit the State 29 or county highway authority from paying any part of the cost 30 of removal, relocation, or modification where such payment is 31 otherwise provided for by State or federal statute or 32 regulation. At any time within 90 days after written notice 33 was given, the owner of the drains, track, rails, poles, 34 wires, pipe line, or other equipment may request the district SB699 Enrolled -7- LRB9207709DHmb 1 engineer or, if appropriate, the county engineer for a waiver 2 of the 90 day deadline. The appropriate district or county 3 engineer shall make a decision concerning waiver within 10 4 days of receipt of the request and may waive the 90 day 5 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 8 the 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 18 county highway authority, the State or county highway 19 authority or the general contractor of the building project 20 may file a complaint in the circuit court for an emergency 21 order to direct and compel the owner to remove, relocate, or 22 modify the drains, track, rails, poles, wires, pipe line, or 23 other equipment to the satisfaction of the appropriate 24 highway authority. The complaint for an order shall be 25 brought in the circuit in which the subject matter of the 26 complaint is situated or, if the subject matter of the 27 complaint is situated in more than one circuit, in any one of 28 those circuits. 29 (g) It shall be the sole responsibility of the entity, 30 without expense to the State highway authority, to maintain 31 and repair its ditches, drains, track, rails, poles, wires, 32 pipe line or other equipment after it is located, placed or 33 constructed upon, under or along any State highway and in no 34 case shall the State highway authority thereafter be liable SB699 Enrolled -8- LRB9207709DHmb 1 or responsible to the entity for any damages or liability of 2 any kind whatsoever incurred by the entity or to the entity's 3 ditches, drains, track, rails, poles, wires, pipe line or 4 other equipment. 5 (h) Upon receipt of an application therefor, consent to 6 so use a highway may be granted subject to such terms and 7 conditions not inconsistent with this Code as the highway 8 authority deems for the best interest of the public. The 9 terms and conditions required by the appropriate highway 10 authority may include but need not be limited to 11 participation by the party granted consent in the strategies 12 and practices adopted under subsection (b) of this Section. 13 The petitioner shall pay to the owners of property abutting 14 upon the affected highways established as though by common 15 law plat all damages the owners may sustain by reason of such 16 use of the highway, such damages to be ascertained and paid 17 in the manner provided by law for the exercise of the right 18 of eminent domain. 19 (i) Such consent shall be granted by the Department in 20 the case of a State highway; by the county board or its 21 designated county superintendent of highways in the case of a 22 county highway; by either the highway commissioner or the 23 county superintendent of highways in the case of a township 24 or district road, provided that if consent is granted by the 25 highway commissioner, the petition shall be filed with the 26 commissioner at least 30 days prior to the proposed date of 27 the beginning of construction, and that if written consent is 28 not given by the commissioner within 30 days after receipt 29 of the petition, the applicant may make written application 30 to the county superintendent of highways for consent to the 31 construction. This Section does not vitiate, extend or 32 otherwise affect any consent granted in accordance with law 33 prior to the effective date of this Code to so use any 34 highway. SB699 Enrolled -9- LRB9207709DHmb 1 (j) Nothing in this Section shall limit the right of a 2 highway authority to permit the location, placement or 3 construction or any ditches, drains, track, rails, poles, 4 wires, pipe line or other equipment upon, under or along any 5 highway or road as a part of its highway or road facilities 6 or which the highway authority determines is necessary to 7 service facilities required for operating the highway or 8 road, including rest areas and weigh stations. 9 (k) Paragraphs (c) and (d) of this Section shall not 10 apply to any accommodation located, placed or constructed 11 with the consent of the State highway authority upon, under 12 or along any non-toll federal-aid fully access-controlled 13 State highway prior to July 1, 1984, provided that 14 accommodation was otherwise in compliance with the rules, 15 regulations and specifications of the State highway 16 authority. 17 (l) The consent to be granted pursuant to this Section 18 by the appropriate highway authority shall be effective only 19 to the extent of the property interest of the State or 20 government unit served by that highway authority. Such 21 consent shall not be binding on any owner of the fee over or 22 under which the highway or road is located and shall not 23 otherwise relieve the entity granted that consent from 24 obtaining by purchase, condemnation or otherwise the 25 necessary approval of any owner of the fee over or under 26 which the highway or road is located. This paragraph shall 27 not be construed as a limitation on the use for highway or 28 road purposes of the land or other property interests 29 acquired by the public for highway or road purposes, 30 including the space under or above such right-of-way. 31 (m) The provisions of this Section apply to all permits 32 issued by the Department of Transportation and the SB699 Enrolled -10- LRB9207709DHmb 1 appropriate State or county highway authority. 2 (Source: P.A. 85-540.)