Illinois General Assembly - Full Text of SB1899
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Full Text of SB1899  102nd General Assembly

SB1899 102ND GENERAL ASSEMBLY

  
  

 


 
102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB1899

 

Introduced 2/26/2021, by Sen. John F. Curran

 

SYNOPSIS AS INTRODUCED:
 
605 ILCS 5/9-113  from Ch. 121, par. 9-113

    Amends the Illinois Highway Code. Eliminates the requirement that the State and county highway authorities adopt strategies and practices that include the delivery of 5-year programs, annual programs, and the establishment of coordination councils in the locales. Provides that each utility shall designate in writing to the Secretary of Transportation or his or her designee an agent for notice and the delivery of State or county projects. Provides that the 90-day deadline for removal, relocation, or modification of the ditches, drains, track, rails, poles, wires, pipe line, or other equipment shall be enforceable by the State or county, instead of by a coordination council. Provides that the total cost of modification may include changes made during construction to avoid or minimize impact to known, or unknown utility's facilities. Provides that costs incurred by the State or county due to the untimely relocation of the utility's facilities, and the State's or county's need to meet a project completion date, shall be paid by the utility upon request from the State or county.


LRB102 15176 RAM 20531 b

 

 

A BILL FOR

 

SB1899LRB102 15176 RAM 20531 b

1    AN ACT concerning transportation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Highway Code is amended by
5changing 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,
8wires, pipe line or other equipment of any public utility
9company, municipal corporation or other public or private
10corporation, association or person shall be located, placed or
11constructed upon, under or along any highway, or upon any
12township or district road, without first obtaining the written
13consent of the appropriate highway authority as hereinafter
14provided for in this Section.
15    (b) The State and county highway authorities are
16authorized to promulgate reasonable and necessary rules,
17regulations, and specifications for highways for the
18administration of this Section. In addition to rules
19promulgated under this subsection (b), the State highway
20authority shall and a county highway authority may adopt
21coordination strategies and practices designed and intended to
22establish and implement effective communication respecting
23planned highway projects that the State or county highway

 

 

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1authority believes may require removal, relocation, or
2modification in accordance with subsection (f) of this
3Section. The strategies and practices adopted shall include
4but need not be limited to the delivery of 5 year programs,
5annual programs, and the establishment of coordination
6councils in the locales and with the utility participation
7that will best facilitate and accomplish the requirements of
8the State and county highway authority acting under subsection
9(f) of this Section. The utility participation shall assist
10include assisting the appropriate highway authority in
11establishing a schedule for the removal, relocation, or
12modification of the owner's facilities in accordance with
13subsection (f) of this Section. In addition, each utility
14shall designate in writing to the Secretary of Transportation
15or his or her designee an agent for notice and the delivery of
16State or county projects programs. The coordination councils
17must be established on or before January 1, 2002. The 90-day 90
18day deadline for removal, relocation, or modification of the
19ditches, drains, track, rails, poles, wires, pipe line, or
20other equipment in subsection (f) of this Section shall be
21enforceable by the State or county upon the establishment of a
22coordination council in the district or locale where the
23property in question is located. The coordination councils
24organized by a county highway authority shall include the
25county engineer, the County Board Chairman or his or her
26designee, and with such utility participation as will best

 

 

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1facilitate and accomplish the requirements of a highway
2authority acting under subsection (f) of this Section. Should
3a county highway authority decide not to establish
4coordination councils, the 90 day deadline for removal,
5relocation, or modification of the ditches, drains, track,
6rails, poles, wires, pipe line, or other equipment in
7subsection (f) of this Section shall be waived for those
8highways.
9    (c) In the case of non-toll federal-aid fully
10access-controlled State highways, the State highway authority
11shall not grant consent to the location, placement or
12construction of ditches, drains, track, rails, poles, wires,
13pipe line or other equipment upon, under or along any such
14non-toll federal-aid fully access-controlled State highway,
15which:
16        (1) would require cutting the pavement structure
17    portion of such highway for installation or, except in the
18    event of an emergency, would require the use of any part of
19    such highway right-of-way for purposes of maintenance or
20    repair. Where, however, the State highway authority
21    determines prior to installation that there is no other
22    access available for maintenance or repair purposes, use
23    by the entity of such highway right-of-way shall be
24    permitted for such purposes in strict accordance with the
25    rules, regulations and specifications of the State highway
26    authority, provided however, that except in the case of

 

 

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1    access to bridge structures, in no such case shall an
2    entity be permitted access from the through-travel lanes,
3    shoulders or ramps of the non-toll federal-aid fully
4    access-controlled State highway to maintain or repair its
5    accommodation; or
6        (2) would in the judgment of the State highway
7    authority, endanger or impair any such ditches, drains,
8    track, rails, poles, wires, pipe lines or other equipment
9    already in place; or
10        (3) would, if installed longitudinally within the
11    access control lines of such highway, be above ground
12    after installation except that the State highway authority
13    may consent to any above ground installation upon, under
14    or along any bridge, interchange or grade separation
15    within the right-of-way which installation is otherwise in
16    compliance with this Section and any rules, regulations or
17    specifications issued hereunder; or
18        (4) would be inconsistent with Federal law or with
19    rules, regulations or directives of appropriate Federal
20    agencies.
21    (d) In the case of accommodations upon, under or along
22non-toll federal-aid fully access-controlled State highways
23the State highway authority may charge an entity reasonable
24compensation for the right of that entity to longitudinally
25locate, place or construct ditches, drains, track, rails,
26poles, wires, pipe line or other equipment upon, under or

 

 

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1along such highway. Such compensation may include in-kind
2compensation.
3    Where the entity applying for use of a non-toll
4federal-aid fully access-controlled State highway right-of-way
5is a public utility company, municipal corporation or other
6public or private corporation, association or person, such
7compensation shall be based upon but shall not exceed a
8reasonable estimate by the State highway authority of the fair
9market value of an easement or leasehold for such use of the
10highway right-of-way. Where the State highway authority
11determines that the applied-for use of such highway
12right-of-way is for private land uses by an individual and not
13for commercial purposes, the State highway authority may
14charge a lesser fee than would be charged a public utility
15company, municipal corporation or other public or private
16corporation or association as compensation for the use of the
17non-toll federal-aid fully access-controlled State highway
18right-of-way. In no case shall the written consent of the
19State highway authority give or be construed to give any
20entity any easement, leasehold or other property interest of
21any kind in, upon, under, above or along the non-toll
22federal-aid fully access-controlled State highway
23right-of-way.
24    Where the compensation from any entity is in whole or in
25part a fee, such fee may be reasonably set, at the election of
26the State highway authority, in the form of a single lump sum

 

 

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1payment or a schedule of payments. All such fees charged as
2compensation may be reviewed and adjusted upward by the State
3highway authority once every 5 years provided that any such
4adjustment shall be based on changes in the fair market value
5of an easement or leasehold for such use of the non-toll
6federal-aid fully access-controlled State highway
7right-of-way. All such fees received as compensation by the
8State highway authority shall be deposited in the Road Fund.
9    (e) Any entity applying for consent shall submit such
10information in such form and detail to the appropriate highway
11authority as to allow the authority to evaluate the entity's
12application. In the case of accommodations upon, under or
13along non-toll federal-aid fully access-controlled State
14highways the entity applying for such consent shall reimburse
15the State highway authority for all of the authority's
16reasonable expenses in evaluating that entity's application,
17including but not limited to engineering and legal fees.
18    (f) Any ditches, drains, track, rails, poles, wires, pipe
19line, or other equipment located, placed, or constructed upon,
20under, or along a highway with the consent of the State or
21county highway authority under this Section shall, upon
22written notice by the State or county highway authority be
23removed, relocated, or modified by the owner, the owner's
24agents, contractors, or employees at no expense to the State
25or county highway authority when and as deemed necessary by
26the State or county highway authority for highway or highway

 

 

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1safety purposes. The notice shall be properly given after the
2completion of engineering plans, the receipt of the necessary
3permits issued by the appropriate State and county highway
4authority to begin work, and the establishment of sufficient
5rights-of-way for a given utility authorized by the State or
6county highway authority to remain on the highway right-of-way
7such that the unit of local government or other owner of any
8facilities receiving notice in accordance with this subsection
9(f) can proceed with relocating, replacing, or reconstructing
10the ditches, drains, track, rails, poles, wires, pipe line, or
11other equipment. If a permit application to relocate on a
12public right-of-way is not filed within 15 days of the receipt
13of final engineering plans, the notice precondition of a
14permit to begin work is waived. However, under no
15circumstances shall this notice provision be construed to
16require the State or any government department or agency to
17purchase additional rights-of-way to accommodate utilities.
18If, within 90 days after receipt of such written notice, the
19ditches, drains, track, rails, poles, wires, pipe line, or
20other equipment have not been removed, relocated, or modified
21to the reasonable satisfaction of the State or county highway
22authority, or if arrangements are not made satisfactory to the
23State or county highway authority for such removal,
24relocation, or modification, the State or county highway
25authority, or its agents, contractors, or employees, may
26modify the construction plans or may remove, relocate, or

 

 

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1modify such ditches, drains, track, rails, poles, wires, pipe
2line, or other equipment and bill the owner thereof for the
3total cost of such removal, relocation, or modification. The
4total cost of modification may include changes made during
5construction to avoid or minimize the impact to known, or
6unknown, utility's facilities. Costs incurred by the State or
7county due to untimely relocation of the utility's facilities,
8and the State's or county's need to meet a project completion
9date, shall be paid by the utility upon request from the State
10or county. The scope of the project shall be taken into
11consideration by the State or county highway authority in
12determining satisfactory arrangements. The State or county
13highway authority shall determine the terms of payment of
14those costs provided that all costs billed by the State or
15county highway authority shall not be made payable over more
16than a 5 year period from the date of billing. The State and
17county highway authority shall have the power to extend the
18time of payment in cases of demonstrated financial hardship by
19a unit of local government or other public owner of any
20facilities removed, relocated, or modified from the highway
21right-of-way in accordance with this subsection (f). This
22paragraph shall not be construed to prohibit the State or
23county highway authority from paying any part of the cost of
24removal, relocation, or modification where such payment is
25otherwise provided for by State or federal statute or
26regulation. At any time within 90 days after written notice

 

 

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1was given, the owner of the drains, track, rails, poles,
2wires, pipe line, or other equipment may request the district
3engineer or, if appropriate, the county engineer for a waiver
4of the 90 day deadline. The appropriate district or county
5engineer shall make a decision concerning waiver within 10
6days of receipt of the request and may waive the 90 day
7deadline if he or she makes a written finding as to the reasons
8for waiving the deadline. Reasons for waiving the deadline
9shall be limited to acts of God, war, the scope of the project,
10the State failing to follow the proper notice procedure, and
11any other cause beyond reasonable control of the owner of the
12facilities. Waiver must not be unreasonably withheld. If 90
13days after written notice was given, the ditches, drains,
14track, rails, poles, wires, pipe line, or other equipment have
15not been removed, relocated, or modified to the satisfaction
16of the State or county highway authority, no waiver of
17deadline has been requested or issued by the appropriate
18district or county engineer, and no satisfactory arrangement
19has been made with the appropriate State or county highway
20authority, the State or county highway authority or the
21general contractor of the building project may file a
22complaint in the circuit court for an emergency order to
23direct and compel the owner to remove, relocate, or modify the
24drains, track, rails, poles, wires, pipe line, or other
25equipment to the satisfaction of the appropriate highway
26authority. The complaint for an order shall be brought in the

 

 

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1circuit in which the subject matter of the complaint is
2situated or, if the subject matter of the complaint is
3situated in more than one circuit, in any one of those
4circuits.
5    (g) It shall be the sole responsibility of the entity,
6without expense to the State highway authority, to maintain
7and repair its ditches, drains, track, rails, poles, wires,
8pipe line or other equipment after it is located, placed or
9constructed upon, under or along any State highway and in no
10case shall the State highway authority thereafter be liable or
11responsible to the entity for any damages or liability of any
12kind whatsoever incurred by the entity or to the entity's
13ditches, drains, track, rails, poles, wires, pipe line or
14other equipment.
15    (h) Except as provided in subsection (h-1), upon receipt
16of an application therefor, consent to so use a highway may be
17granted subject to such terms and conditions not inconsistent
18with this Code as the highway authority deems for the best
19interest of the public. The terms and conditions required by
20the appropriate highway authority may include but need not be
21limited to participation by the party granted consent in the
22strategies and practices adopted under subsection (b) of this
23Section. The petitioner shall pay to the owners of property
24abutting upon the affected highways established as though by
25common law plat all damages the owners may sustain by reason of
26such use of the highway, such damages to be ascertained and

 

 

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1paid in the manner provided by law for the exercise of the
2right of eminent domain.
3    (h-1) With regard to any public utility, as defined in
4Section 3-105 of the Public Utilities Act, engaged in public
5water or public sanitary sewer service that comes under the
6jurisdiction of the Illinois Commerce Commission, upon receipt
7of an application therefor, consent to so use a highway may be
8granted subject to such terms and conditions not inconsistent
9with this Code as the highway authority deems for the best
10interest of the public. The terms and conditions required by
11the appropriate highway authority may include but need not be
12limited to participation by the party granted consent in the
13strategies and practices adopted under subsection (b) of this
14Section. If the highway authority does not have fee ownership
15of the property, the petitioner shall pay to the owners of
16property located in the highway right-of-way all damages the
17owners may sustain by reason of such use of the highway, such
18damages to be ascertained and paid in the manner provided by
19law for the exercise of the right of eminent domain. The
20consent shall not otherwise relieve the entity granted that
21consent from obtaining by purchase, condemnation, or otherwise
22the necessary approval of any owner of the fee over or under
23which the highway or road is located, except to the extent that
24no such owner has paid real estate taxes on the property for
25the 2 years prior to the grant of the consent. Owners of
26property that abuts the right-of-way but who acquired the

 

 

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1property through a conveyance that either expressly excludes
2the property subject to the right-of-way or that describes the
3property conveyed as ending at the right-of-way or being
4bounded by the right-of-way or road shall not be considered
5owners of property located in the right-of-way and shall not
6be entitled to damages by reason of the use of the highway or
7road for utility purposes, except that this provision shall
8not relieve the public utility from the obligation to pay for
9any physical damage it causes to improvements lawfully located
10in the right-of-way. Owners of abutting property whose
11descriptions include the right-of-way but are made subject to
12the right-of-way shall be entitled to compensation for use of
13the right-of-way. If the property subject to the right-of-way
14is not owned by the owners of the abutting property (either
15because it is expressly excluded from the property conveyed to
16an abutting property owner or the property as conveyed ends at
17or is bounded by the right-of-way or road), then the
18petitioner shall pay any damages, as so calculated, to the
19person or persons who have paid real estate taxes for the
20property as reflected in the county tax records. If no person
21has paid real estate taxes, then the public interest permits
22the installation of the facilities without payment of any
23damages. This provision of this amendatory Act of the 93rd
24General Assembly is intended to clarify, by codification,
25existing law and is not intended to change the law.
26    (i) Such consent shall be granted by the Department in the

 

 

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1case of a State highway; by the county board or its designated
2county superintendent of highways in the case of a county
3highway; by either the highway commissioner or the county
4superintendent of highways in the case of a township or
5district road, provided that if consent is granted by the
6highway commissioner, the petition shall be filed with the
7commissioner at least 30 days prior to the proposed date of the
8beginning of construction, and that if written consent is not
9given by the commissioner within 30 days after receipt of the
10petition, the applicant may make written application to the
11county superintendent of highways for consent to the
12construction. This Section does not vitiate, extend or
13otherwise affect any consent granted in accordance with law
14prior to the effective date of this Code to so use any highway.
15    (j) Nothing in this Section shall limit the right of a
16highway authority to permit the location, placement or
17construction or any ditches, drains, track, rails, poles,
18wires, pipe line or other equipment upon, under or along any
19highway or road as a part of its highway or road facilities or
20which the highway authority determines is necessary to service
21facilities required for operating the highway or road,
22including rest areas and weigh stations.
23    (k) Paragraphs (c) and (d) of this Section shall not apply
24to any accommodation located, placed or constructed with the
25consent of the State highway authority upon, under or along
26any non-toll federal-aid fully access-controlled State highway

 

 

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1prior to July 1, 1984, provided that accommodation was
2otherwise in compliance with the rules, regulations and
3specifications of the State highway authority.
4    (l) Except as provided in subsection (l-1), the consent to
5be granted pursuant to this Section by the appropriate highway
6authority shall be effective only to the extent of the
7property interest of the State or government unit served by
8that highway authority. Such consent shall not be binding on
9any owner of the fee over or under which the highway or road is
10located and shall not otherwise relieve the entity granted
11that consent from obtaining by purchase, condemnation or
12otherwise the necessary approval of any owner of the fee over
13or under which the highway or road is located. This paragraph
14shall not be construed as a limitation on the use for highway
15or road purposes of the land or other property interests
16acquired by the public for highway or road purposes, including
17the space under or above such right-of-way.
18    (l-1) With regard to any public utility, as defined in
19Section 3-105 of the Public Utilities Act, engaged in public
20water or public sanitary sewer service that comes under the
21jurisdiction of the Illinois Commerce Commission, the consent
22to be granted pursuant to this Section by the appropriate
23highway authority shall be effective only to the extent of the
24property interest of the State or government unit served by
25that highway authority. Such consent shall not be binding on
26any owner of the fee over or under which the highway or road is

 

 

SB1899- 15 -LRB102 15176 RAM 20531 b

1located but shall be binding on any abutting property owner
2whose property boundary ends at the right-of-way of the
3highway or road. For purposes of the preceding sentence,
4property that includes a portion of a highway or road but is
5subject to the highway or road shall not be considered to end
6at the highway or road. The consent shall not otherwise
7relieve the entity granted that consent from obtaining by
8purchase, condemnation or otherwise the necessary approval of
9any owner of the fee over or under which the highway or road is
10located, except to the extent that no such owner has paid real
11estate taxes on the property for the 2 years prior to the grant
12of the consent. This provision is not intended to absolve a
13utility from obtaining consent from a lawful owner of the
14roadway or highway property (i.e. a person whose deed of
15conveyance lawfully includes the property, whether or not made
16subject to the highway or road) but who does not pay taxes by
17reason of Division 6 of Article 10 of the Property Tax Code.
18This paragraph shall not be construed as a limitation on the
19use for highway or road purposes of the land or other property
20interests acquired by the public for highway or road purposes,
21including the space under or above such right-of-way.
22    (m) The provisions of this Section apply to all permits
23issued by the Department of Transportation and the appropriate
24State or county highway authority.
25(Source: P.A. 92-470, eff. 1-1-02; 93-357, eff. 1-1-04.)