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| Public Act 102-0449 | ||||
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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 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, | ||||
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
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township or district road, without first obtaining the written | ||||
consent of the
appropriate highway authority as hereinafter | ||||
provided for in this
Section.
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(b) The State and county highway authorities are
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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
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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
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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
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coordination councils must be established on or before January
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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
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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.
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(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
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non-toll federal-aid fully access-controlled State highway, | ||
which:
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(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
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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,
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shoulders or ramps of the non-toll federal-aid fully | ||
access-controlled
State highway to maintain or repair its | ||
accommodation; or
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(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
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(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
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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
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(4) would be inconsistent with Federal law or with | ||
rules, regulations or
directives of appropriate Federal | ||
agencies.
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(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.
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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
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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
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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
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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.
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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
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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.
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(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.
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(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
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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
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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
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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circuits.
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(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
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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.
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(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
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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 | ||
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.
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(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
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law for the exercise of the right of eminent domain. The | ||
consent shall not
otherwise relieve the entity granted that
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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
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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
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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.
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(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
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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. In the case of township roads, the county | ||
superintendent of highways may either grant consent for the | ||
construction or deny the application. The county | ||
superintendent of highways shall provide written confirmation, | ||
citing the basis of the decision, to both the highway | ||
commissioner and the
applicant. This Section does not
vitiate, | ||
extend or otherwise affect any consent granted in accordance
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with law prior to the effective date of this Code to so use any | ||
highway.
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(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.
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(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.
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(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.
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(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.
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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.
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(m) The provisions of this Section apply to all permits | ||
issued by the
Department of Transportation and the
appropriate | ||
State or county highway
authority.
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(Source: P.A. 92-470, eff. 1-1-02; 93-357, eff. 1-1-04.)
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