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Public Act 92-0470
SB699 Enrolled LRB9207709DHmb
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
authority is authorized to promulgate reasonable and
necessary rules, regulations, and specifications for State
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 State 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 subject to removal,
relocation or modification 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 60 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) 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.
(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) 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.
(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. 85-540.)
Passed in the General Assembly May 30, 2001.
Approved August 22, 2001.
Effective January 01, 2002.
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