Public Act 93-0357

SB1054 Enrolled                      LRB093 06226 DRH 11472 b

    AN ACT concerning highways.

    Be it enacted by the People of  the  State  of  Illinois,
represented in the General Assembly:

    Section  5.   The  Illinois  Highway  Code  is amended by
changing Section 9-113 as follows:

    (605 ILCS 5/9-113) (from Ch. 121, par. 9-113)
    Sec. 9-113. (a)  No ditches, drains, track, rails, poles,
wires, pipe line or other equipment  of  any  public  utility
company,  municipal  corporation  or  other public or private
corporation, association or person shall be  located,  placed
or  constructed upon, under or along any highway, or upon any
township  or  district  road,  without  first  obtaining  the
written consent  of  the  appropriate  highway  authority  as
hereinafter provided for in this Section.
    (b)  The   State   and  county  highway  authorities  are
authorized to  promulgate  reasonable  and  necessary  rules,
regulations,   and   specifications   for  highways  for  the
administration  of  this  Section.  In  addition   to   rules
promulgated  under  this  subsection  (b),  the State highway
authority shall and a  county  highway  authority  may  adopt
coordination  strategies  and practices designed and intended
to establish and implement effective communication respecting
planned highway projects that the  State  or  county  highway
authority   believes  may  require  removal,  relocation,  or
modification  in  accordance  with  subsection  (f)  of  this
Section.  The strategies and practices adopted shall  include
but  need  not be limited to the delivery of 5 year programs,
annual  programs,  and  the  establishment  of   coordination
councils  in  the  locales and with the utility participation
that will best facilitate and accomplish the requirements  of
the   State   and   county  highway  authority  acting  under

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

    Section  10.   The Conveyances Act is amended by changing
Section 7a as follows:

    (765 ILCS 5/7a) (from Ch. 30, par. 6a)
    Sec. 7a.  (a) Except as provided in subsection  (b),  any
instrument,  including  a  will,  which  conveys,  transfers,
encumbers,  leases  or  releases, or by which an agreement is
made to convey, transfer, encumber, lease or release,  or  by
virtue  of  which there is conveyed, transferred, encumbered,
leased or released, any real property, whether described by a
metes and bounds description or otherwise, which  abuts  upon
any  road, street, highway or alley, or upon any abandoned or
vacated road, street, highway or alley shall  be  deemed  and
construed  to  include  any  right, title or interest in that
part of  such  road,  street,  highway  or  alley  which  the
abutting  owner who makes any such instrument shall presently
have or, which such owner, his heirs, successors and  assigns
subsequently  acquires in such road, street, highway or alley
unless such instrument by its terms  expressly  excludes,  in
the  description  of the property, such road, street, highway
or alley. The right, title or interest  acquired  under  such
instrument  in such road, street, highway or alley, by virtue
of the provisions of this Act, shall be deemed and  construed
to  be  for  the  same  uses  and  purposes set forth in such
instrument with respect to  the  real  property  specifically
described   in  the  instrument.  However,  no  covenants  or
agreements made by the maker  of  any  such  instrument  with
respect  to  any  real  property specifically described shall
apply to or be enforceable with respect to any  right,  title
or  interest  which  is  acquired  solely  by  virtue  of the
provisions of this Act.
    (b)  With regard to any public  utility,  as  defined  in
Section  3-105 of the Public Utilities Act, engaged in public
water or public sanitary sewer service that comes  under  the
jurisdiction   of   the  Illinois  Commerce  Commission,  any
instrument,  including  a  will,  which  conveys,  transfers,
encumbers, leases or releases, or by which  an  agreement  is
made  to  convey, transfer, encumber, lease or release, or by
virtue of which there is conveyed,  transferred,  encumbered,
leased or released, any real property, whether described by a
metes  and  bounds description or otherwise, which abuts upon
any road, street, highway or alley, or upon any abandoned  or
vacated  road,  street,  highway or alley shall be deemed and
construed to include any right, title  or  interest  in  that
part  of  such  road,  street,  highway  or  alley  which the
abutting owner who makes any such instrument shall  presently
have  or, which such owner, his heirs, successors and assigns
subsequently acquires in such road, street, highway or  alley
unless  such  instrument  by its terms expressly excludes, in
the description of the property, such road,  street,  highway
or  alley.  The  right, title or interest acquired under such
instrument in such road, street, highway or alley, by  virtue
of  the provisions of this Act, shall be deemed and construed
to be for the same  uses  and  purposes  set  forth  in  such
instrument  with  respect  to  the real property specifically
described  in  the  instrument.  However,  no  covenants   or
agreements  made  by  the  maker  of any such instrument with
respect to any real  property  specifically  described  shall
apply  to or be enforceable with respect to any right, title,
or interest  which  is  acquired  solely  by  virtue  to  the
provisions  of  this  Act.  "Conveyance" expressly excludes a
road, street, highway, or alley if the legal  description  of
the  property uses the boundary of the road, street, highway,
or alley closest to the property being conveyed as a boundary
of the property being conveyed or expressly states  that  the
road, street, highway, or alley is excepted from the property
being  conveyed.  A  conveyance  does not expressly exclude a
road,  street,  highway,  or  alley  if  the  conveyance   is
described as being "subject to" the road, street, highway, or
alley.  The  rights  accruing  in the abutting property owner
under this Act shall be subject  to  all  existing  uses  and
easements  located  within the right-of-way; the rights shall
also be subject to such future uses and easements as  may  be
permitted  to  be  located  within the right-of-way under the
provisions of the Illinois  Highway  Code  or  any  successor
statute  thereto.   This  provision of this amendatory Act of
the  93rd  General  Assembly  is  intended  to  clarify,   by
codification,  existing law and is not intended to change the
law.
(Source: P.A. 76-1660.)

Effective Date: 1/1/2004