Full Text of SB1439 95th General Assembly
SB1439 95TH GENERAL ASSEMBLY
|
|
|
95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 SB1439
Introduced 2/9/2007, by Sen. Frank C. Watson SYNOPSIS AS INTRODUCED: |
|
605 ILCS 5/9-113 |
from Ch. 121, par. 9-113 |
|
Amends the Illinois Highway Code. Makes a technical change in a provision regarding equipment of a public utility company.
|
| |
|
|
A BILL FOR
|
|
|
|
|
SB1439 |
|
LRB095 10790 DRH 31034 b |
|
| 1 |
| AN ACT concerning transportation.
| 2 |
| Be it enacted by the People of the State of Illinois,
| 3 |
| represented in the General Assembly:
| 4 |
| Section 5. The Illinois Highway Code is amended by changing | 5 |
| Section 9-113 as follows:
| 6 |
| (605 ILCS 5/9-113) (from Ch. 121, par. 9-113)
| 7 |
| Sec. 9-113. (a) No ditches, drains, track, rails, poles, | 8 |
| wires, pipe line
or other equipment of any
any public utility | 9 |
| company, municipal corporation
or other public or private | 10 |
| corporation, association or person shall be
located, placed or | 11 |
| constructed upon, under or along any highway, or upon any
| 12 |
| township or district road, without first obtaining the written | 13 |
| consent of the
appropriate highway authority as hereinafter | 14 |
| provided for in this
Section.
| 15 |
| (b) The State and county highway authorities are
authorized | 16 |
| to promulgate
reasonable and necessary rules, regulations, and | 17 |
| specifications for
highways for the administration of this | 18 |
| Section.
In addition to rules promulgated under this subsection | 19 |
| (b), the State highway
authority shall and a county highway | 20 |
| authority may adopt coordination
strategies and practices | 21 |
| designed and intended to establish and implement
effective | 22 |
| communication respecting planned highway projects that the
| 23 |
| State or county highway authority believes may require removal, |
|
|
|
SB1439 |
- 2 - |
LRB095 10790 DRH 31034 b |
|
| 1 |
| relocation,
or modification in accordance with subsection (f) | 2 |
| of this Section. The
strategies and practices adopted shall | 3 |
| include but need not be limited to the
delivery of 5 year | 4 |
| programs, annual programs, and the establishment of
| 5 |
| coordination councils in the locales and with the utility | 6 |
| participation that
will
best facilitate and accomplish the | 7 |
| requirements of the State and county
highway authority acting | 8 |
| under subsection (f) of this Section. The utility
participation | 9 |
| shall include assisting the appropriate highway authority in
| 10 |
| establishing a schedule for the removal, relocation, or | 11 |
| modification of the
owner's facilities in accordance with | 12 |
| subsection (f) of this Section. In
addition, each utility shall | 13 |
| designate in writing to the Secretary of
Transportation or his | 14 |
| or her designee an agent for notice and the delivery of
| 15 |
| programs. The
coordination councils must be established on or | 16 |
| before January
1, 2002. The 90 day deadline for removal, | 17 |
| relocation, or modification of the
ditches, drains, track, | 18 |
| rails, poles, wires, pipe line, or other equipment in
| 19 |
| subsection (f) of this Section shall be enforceable upon the | 20 |
| establishment of
a coordination council in the district or | 21 |
| locale where the property in question
is located. The | 22 |
| coordination councils organized by a county highway
authority | 23 |
| shall include the county engineer, the County Board
Chairman or | 24 |
| his or her designee, and with such utility participation as | 25 |
| will
best
facilitate and accomplish the requirements of a | 26 |
| highway authority acting under
subsection (f) of this Section. |
|
|
|
SB1439 |
- 3 - |
LRB095 10790 DRH 31034 b |
|
| 1 |
| Should a county
highway authority decide not to establish | 2 |
| coordination councils,
the 90 day deadline for removal, | 3 |
| relocation, or modification
of the ditches, drains, track, | 4 |
| rails, poles, wires, pipe line, or other
equipment
in | 5 |
| subsection (f) of this Section shall be waived for those | 6 |
| highways.
| 7 |
| (c) In the case of non-toll federal-aid fully | 8 |
| access-controlled State
highways, the State highway authority | 9 |
| shall not grant consent to the
location, placement or | 10 |
| construction of ditches, drains, track, rails,
poles, wires, | 11 |
| pipe line or other equipment upon, under or along any such
| 12 |
| non-toll federal-aid fully access-controlled State highway, | 13 |
| which:
| 14 |
| (1) would require cutting the pavement structure | 15 |
| portion of such
highway for installation or, except in the | 16 |
| event of an emergency, would
require the use of any part of | 17 |
| such highway right-of-way for purposes of
maintenance or | 18 |
| repair. Where, however, the State highway authority
| 19 |
| determines prior to installation that there is no other | 20 |
| access available for
maintenance or repair purposes, use by | 21 |
| the entity of such highway right-of-way
shall be permitted | 22 |
| for such purposes in strict accordance with the rules,
| 23 |
| regulations and specifications of the State highway | 24 |
| authority, provided
however, that except in the case of | 25 |
| access to bridge structures, in no such
case shall an | 26 |
| entity be permitted access from the through-travel lanes,
|
|
|
|
SB1439 |
- 4 - |
LRB095 10790 DRH 31034 b |
|
| 1 |
| shoulders or ramps of the non-toll federal-aid fully | 2 |
| access-controlled
State highway to maintain or repair its | 3 |
| accommodation; or
| 4 |
| (2) would in the judgment of the State highway | 5 |
| authority, endanger or
impair any such ditches, drains, | 6 |
| track, rails, poles, wires, pipe lines or
other equipment | 7 |
| already in place; or
| 8 |
| (3) would, if installed longitudinally within the | 9 |
| access control lines
of such highway, be above ground after | 10 |
| installation except that the State
highway authority may | 11 |
| consent to any above ground installation upon, under
or | 12 |
| along any bridge, interchange or grade separation within | 13 |
| the
right-of-way which installation is otherwise in | 14 |
| compliance with this
Section and any rules, regulations or | 15 |
| specifications issued hereunder; or
| 16 |
| (4) would be inconsistent with Federal law or with | 17 |
| rules, regulations or
directives of appropriate Federal | 18 |
| agencies.
| 19 |
| (d) In the case of accommodations upon, under or along | 20 |
| non-toll
federal-aid fully access-controlled State highways | 21 |
| the State highway authority
may charge an entity reasonable | 22 |
| compensation for the right of that entity to
longitudinally | 23 |
| locate, place or construct ditches, drains, track, rails, | 24 |
| poles,
wires,
pipe line or other equipment upon, under or along | 25 |
| such highway. Such
compensation may include in-kind | 26 |
| compensation.
|
|
|
|
SB1439 |
- 5 - |
LRB095 10790 DRH 31034 b |
|
| 1 |
| Where the entity applying for use of a non-toll federal-aid | 2 |
| fully
access-controlled State highway right-of-way is a public | 3 |
| utility company,
municipal corporation or other public or | 4 |
| private corporation, association
or person, such compensation | 5 |
| shall be based upon but shall not exceed a
reasonable estimate | 6 |
| by the State highway authority of the fair market value
of an | 7 |
| easement or leasehold for such use of the highway right-of-way.
| 8 |
| Where the State highway authority determines that the | 9 |
| applied-for use of
such highway right-of-way is for private | 10 |
| land uses by an individual and not
for commercial purposes, the | 11 |
| State highway authority may charge a lesser fee
than would be | 12 |
| charged a public utility company, municipal corporation or
| 13 |
| other public or private corporation or association as | 14 |
| compensation for the
use of the non-toll federal-aid fully | 15 |
| access-controlled State highway
right-of-way. In no case shall | 16 |
| the written consent of the State highway
authority give or be | 17 |
| construed to give any entity any easement, leasehold
or other | 18 |
| property interest of any kind in, upon, under, above or along | 19 |
| the
non-toll federal-aid fully access-controlled State highway | 20 |
| right-of-way.
| 21 |
| Where the compensation from any entity is in whole or in | 22 |
| part a fee, such
fee may be reasonably set, at the election of | 23 |
| the State highway authority,
in the form of a single lump sum | 24 |
| payment or a schedule of payments.
All such fees charged as | 25 |
| compensation may be reviewed and adjusted upward by
the State | 26 |
| highway authority once every 5 years provided that any such
|
|
|
|
SB1439 |
- 6 - |
LRB095 10790 DRH 31034 b |
|
| 1 |
| adjustment shall be based on changes in the fair market value | 2 |
| of an easement
or leasehold for such use of the non-toll | 3 |
| federal-aid fully
access-controlled State highway | 4 |
| right-of-way. All such fees received as
compensation by the | 5 |
| State highway authority shall be deposited in the Road Fund.
| 6 |
| (e) Any entity applying for consent shall submit such | 7 |
| information in
such form and detail to the appropriate highway | 8 |
| authority as to allow the
authority to evaluate the entity's | 9 |
| application. In the case of
accommodations upon, under or along | 10 |
| non-toll federal-aid fully
access-controlled State highways | 11 |
| the entity applying for such consent shall
reimburse the State | 12 |
| highway authority for all of the authority's reasonable
| 13 |
| expenses in evaluating that entity's application, including | 14 |
| but not limited
to engineering and legal fees.
| 15 |
| (f) Any ditches, drains, track, rails, poles, wires, pipe | 16 |
| line, or
other
equipment located, placed, or constructed upon, | 17 |
| under, or along a highway
with the consent of the State or | 18 |
| county highway authority under this
Section shall,
upon written | 19 |
| notice by the State or county highway authority be
removed,
| 20 |
| relocated, or modified by the owner, the owner's agents, | 21 |
| contractors, or
employees at no expense to the State or county | 22 |
| highway
authority when and as deemed necessary by the State or | 23 |
| county highway
authority for highway
or highway safety | 24 |
| purposes.
The notice shall be properly given after the | 25 |
| completion of engineering plans,
the receipt of the necessary | 26 |
| permits issued by the appropriate State and
county highway |
|
|
|
SB1439 |
- 7 - |
LRB095 10790 DRH 31034 b |
|
| 1 |
| authority to begin work, and the establishment of sufficient
| 2 |
| rights-of-way for a given utility authorized by the State or | 3 |
| county highway
authority to remain on the highway right-of-way | 4 |
| such that the unit of local
government or other owner of any | 5 |
| facilities receiving notice in accordance
with this subsection | 6 |
| (f) can proceed with relocating, replacing, or
reconstructing | 7 |
| the ditches, drains, track, rails, poles, wires, pipe line, or
| 8 |
| other
equipment. If a permit application to relocate on a | 9 |
| public right-of-way is not
filed within 15 days of the receipt | 10 |
| of final engineering plans, the notice
precondition of a permit | 11 |
| to begin work is waived. However, under no
circumstances shall | 12 |
| this notice provision be construed to require the State or
any
| 13 |
| government department or agency to purchase additional
| 14 |
| rights-of-way to accommodate utilities.
If, within 90 days | 15 |
| after receipt of such
written notice,
the ditches, drains, | 16 |
| track, rails, poles, wires, pipe line, or other
equipment
have | 17 |
| not been removed, relocated, or modified to the reasonable | 18 |
| satisfaction
of the State or county highway authority, or if
| 19 |
| arrangements are not made satisfactory to the State or county
| 20 |
| highway authority for such removal, relocation, or | 21 |
| modification, the State
or county
highway
authority may remove, | 22 |
| relocate, or modify such ditches, drains, track,
rails, poles, | 23 |
| wires, pipe line, or other equipment and bill the owner
thereof | 24 |
| for the total cost of such removal, relocation, or | 25 |
| modification.
The scope of the project shall be taken into | 26 |
| consideration by the State or
county highway authority in |
|
|
|
SB1439 |
- 8 - |
LRB095 10790 DRH 31034 b |
|
| 1 |
| determining satisfactory arrangements.
The State or county | 2 |
| highway authority shall determine the terms of payment
of those | 3 |
| costs
provided that all costs billed by the State or county | 4 |
| highway authority
shall not be made
payable over more than a 5 | 5 |
| year period from the date of billing.
The State and county | 6 |
| highway authority shall have the power to extend the
time of | 7 |
| payment in cases of demonstrated financial hardship by a unit | 8 |
| of
local government or other public owner of any facilities | 9 |
| removed, relocated,
or modified from the highway right-of-way | 10 |
| in accordance with this
subsection (f).
This
paragraph shall | 11 |
| not be construed to prohibit the State or county highway
| 12 |
| authority
from paying any part of the cost of removal, | 13 |
| relocation, or modification
where such payment is otherwise | 14 |
| provided for by State or federal statute or
regulation.
At any | 15 |
| time within 90 days after written notice was given, the owner | 16 |
| of the
drains, track, rails, poles, wires, pipe line, or other | 17 |
| equipment may request
the district engineer or, if appropriate, | 18 |
| the county engineer for a waiver of
the 90 day deadline. The | 19 |
| appropriate district or county engineer shall make a
decision | 20 |
| concerning waiver within 10 days of receipt of the request and | 21 |
| may
waive the 90 day deadline if he or she makes a written | 22 |
| finding as to the
reasons for waiving the deadline. Reasons for | 23 |
| waiving the deadline shall be
limited to acts of God, war, the | 24 |
| scope of the project, the State failing to
follow the proper | 25 |
| notice
procedure, and any other cause beyond reasonable control | 26 |
| of the owner of
the facilities. Waiver must not be unreasonably |
|
|
|
SB1439 |
- 9 - |
LRB095 10790 DRH 31034 b |
|
| 1 |
| withheld. If 90 days after
written notice was given, the | 2 |
| ditches, drains, track, rails, poles, wires, pipe
line, or | 3 |
| other equipment have not been removed, relocated, or modified | 4 |
| to
the satisfaction of the State or county highway authority, | 5 |
| no waiver of
deadline has been requested or issued by the | 6 |
| appropriate district or county
engineer, and no satisfactory | 7 |
| arrangement has been made with the
appropriate State or county | 8 |
| highway authority, the State or county highway
authority or the | 9 |
| general contractor of the building project may file a
complaint | 10 |
| in the circuit court for an emergency order to direct and | 11 |
| compel
the owner to remove, relocate, or modify the drains, | 12 |
| track, rails, poles,
wires,
pipe line, or other equipment to | 13 |
| the satisfaction of the appropriate highway
authority. The | 14 |
| complaint for an order shall be brought in the circuit in which
| 15 |
| the subject matter of the complaint is situated or, if the | 16 |
| subject matter of
the
complaint is situated in more than one | 17 |
| circuit, in any one of those
circuits.
| 18 |
| (g) It shall be the sole responsibility of the entity, | 19 |
| without expense to
the State highway authority, to maintain and | 20 |
| repair its ditches,
drains, track, rails, poles, wires, pipe | 21 |
| line or other equipment after it is
located, placed or | 22 |
| constructed upon, under or along any State highway and in no
| 23 |
| case shall the State highway authority thereafter be liable or | 24 |
| responsible to
the
entity for any damages or liability of any | 25 |
| kind whatsoever incurred by the
entity or to the entity's | 26 |
| ditches, drains, track, rails, poles, wires, pipe
line or other |
|
|
|
SB1439 |
- 10 - |
LRB095 10790 DRH 31034 b |
|
| 1 |
| equipment.
| 2 |
| (h) Except as provided in subsection (h-1), upon receipt of | 3 |
| an
application therefor,
consent to so use a highway may
be | 4 |
| granted subject to such terms and conditions not inconsistent | 5 |
| with
this Code as the highway authority deems for the best | 6 |
| interest of the
public.
The terms and conditions required by | 7 |
| the appropriate highway authority may
include but need not be | 8 |
| limited to participation by the party granted consent
in the | 9 |
| strategies and practices adopted under subsection (b) of this | 10 |
| Section.
The
petitioner shall pay to the owners of property
| 11 |
| abutting upon the affected highways established as though by
| 12 |
| common law plat all damages the owners may sustain by reason of | 13 |
| such use of
the highway, such damages to be ascertained and | 14 |
| paid in the manner provided by
law for the exercise of the | 15 |
| right of eminent domain.
| 16 |
| (h-1) With regard to any public utility, as defined in | 17 |
| Section 3-105 of
the Public Utilities Act, engaged in public | 18 |
| water or public sanitary sewer
service that comes under the | 19 |
| jurisdiction of the Illinois Commerce Commission,
upon receipt | 20 |
| of an application therefor,
consent to so use a highway may
be | 21 |
| granted subject to such terms and conditions not inconsistent | 22 |
| with
this Code as the highway authority deems for the best | 23 |
| interest of the
public.
The terms and conditions required by | 24 |
| the appropriate highway authority may
include but need not be | 25 |
| limited to participation by the party granted consent
in the | 26 |
| strategies and practices adopted under subsection (b) of this |
|
|
|
SB1439 |
- 11 - |
LRB095 10790 DRH 31034 b |
|
| 1 |
| Section.
If the highway authority does not have fee ownership | 2 |
| of the property, the
petitioner shall pay to the owners of | 3 |
| property located in the highway
right-of-way
all damages the | 4 |
| owners may sustain by reason of such use of
the highway, such | 5 |
| damages to be ascertained and paid in the manner provided by
| 6 |
| law for the exercise of the right of eminent domain. The | 7 |
| consent shall not
otherwise relieve the entity granted that
| 8 |
| consent from obtaining by purchase, condemnation, or otherwise | 9 |
| the
necessary approval of any owner of the fee over or under | 10 |
| which the
highway or road is located, except to the extent that | 11 |
| no such owner has
paid real estate taxes on the property for | 12 |
| the 2 years prior to the
grant of the consent. Owners of | 13 |
| property that abuts the right-of-way but who
acquired the
| 14 |
| property through a conveyance that either expressly excludes | 15 |
| the property
subject to the right-of-way or that describes the | 16 |
| property conveyed as ending
at the right-of-way or being | 17 |
| bounded by the right-of-way or road shall not be
considered | 18 |
| owners of property located in the right-of-way and shall not be
| 19 |
| entitled to damages by reason of the use of the highway or road | 20 |
| for utility
purposes, except that this provision shall not | 21 |
| relieve the public utility
from the
obligation to pay for any | 22 |
| physical damage it causes to
improvements lawfully located in | 23 |
| the right-of-way. Owners of abutting
property whose | 24 |
| descriptions include the right-of-way but are made subject to
| 25 |
| the right-of-way shall be entitled to compensation for use of | 26 |
| the
right-of-way.
If the property subject to the right-of-way |
|
|
|
SB1439 |
- 12 - |
LRB095 10790 DRH 31034 b |
|
| 1 |
| is not owned by the
owners of the abutting property (either | 2 |
| because it is expressly excluded from
the property conveyed to | 3 |
| an abutting property owner or the property as conveyed
ends at | 4 |
| or is bounded by the right-of-way or road), then the petitioner | 5 |
| shall
pay any damages, as so calculated, to
the person or | 6 |
| persons who have paid real estate taxes for the property as
| 7 |
| reflected in the
county tax records. If no person has paid real | 8 |
| estate taxes, then the
public interest permits the installation | 9 |
| of the facilities without payment of
any damages. This | 10 |
| provision of this
amendatory Act of the 93rd General Assembly | 11 |
| is intended to clarify, by
codification, existing law and is | 12 |
| not intended to change the law.
| 13 |
| (i) Such consent shall be granted by the Department in the | 14 |
| case of a
State highway; by the county board or its designated | 15 |
| county superintendent
of highways in the case of a county | 16 |
| highway; by
either the highway commissioner or the county | 17 |
| superintendent of highways
in the case of a township or | 18 |
| district road, provided that if consent is
granted by the | 19 |
| highway commissioner, the petition shall be filed with
the | 20 |
| commissioner at least 30 days prior to the proposed date of the
| 21 |
| beginning of construction, and that if written consent is not | 22 |
| given by
the commissioner within 30 days after receipt of the | 23 |
| petition, the
applicant may make written application to the | 24 |
| county superintendent of
highways for consent to the | 25 |
| construction. This Section does not
vitiate, extend or | 26 |
| otherwise affect any consent granted in accordance
with law |
|
|
|
SB1439 |
- 13 - |
LRB095 10790 DRH 31034 b |
|
| 1 |
| prior to the effective date of this Code to so use any highway.
| 2 |
| (j) Nothing in this Section shall limit the right of a | 3 |
| highway
authority to permit the location, placement or | 4 |
| construction or any ditches,
drains, track, rails, poles, | 5 |
| wires, pipe line or other equipment upon,
under or along any | 6 |
| highway or road as a part of its highway or road
facilities or | 7 |
| which the highway authority determines is necessary to
service | 8 |
| facilities required for operating the highway or road, | 9 |
| including
rest areas and weigh stations.
| 10 |
| (k) Paragraphs (c) and (d) of this Section shall not apply | 11 |
| to any
accommodation located, placed or constructed with the | 12 |
| consent of the State
highway authority upon, under or along any | 13 |
| non-toll federal-aid fully
access-controlled State
highway | 14 |
| prior to July 1, 1984, provided that accommodation was | 15 |
| otherwise
in compliance with the rules, regulations and | 16 |
| specifications of the State
highway authority.
| 17 |
| (l) Except as provided in subsection (l-1), the consent to | 18 |
| be granted
pursuant to this Section by the appropriate
highway | 19 |
| authority shall be effective only to the extent of the property
| 20 |
| interest of the State or government unit served by that highway | 21 |
| authority.
Such consent shall not be binding on any owner of | 22 |
| the fee over or under which
the highway or road is located and | 23 |
| shall not otherwise relieve the entity
granted that consent | 24 |
| from obtaining by purchase, condemnation or otherwise
the | 25 |
| necessary approval of any owner of the fee over or under which | 26 |
| the highway
or road is located.
This paragraph shall
not be |
|
|
|
SB1439 |
- 14 - |
LRB095 10790 DRH 31034 b |
|
| 1 |
| construed as a limitation on the use for highway or road | 2 |
| purposes
of the land or other property interests acquired by | 3 |
| the public for highway
or road purposes, including the space | 4 |
| under or above such right-of-way.
| 5 |
| (l-1) With regard to any public utility, as defined in | 6 |
| Section 3-105 of
the
Public Utilities Act, engaged in public | 7 |
| water or public sanitary sewer service
that comes under the | 8 |
| jurisdiction of the Illinois Commerce Commission, the
consent | 9 |
| to be granted pursuant to this Section by the appropriate
| 10 |
| highway authority shall be effective only to the extent of the | 11 |
| property
interest of the State or government unit served by | 12 |
| that highway authority.
Such consent shall not be binding on | 13 |
| any owner of the fee over or under which
the highway or road is | 14 |
| located but shall be binding on any abutting property
owner | 15 |
| whose property boundary ends at the right-of-way of the highway | 16 |
| or road.
For purposes of the preceding sentence, property that | 17 |
| includes a portion of
a highway or road but is subject to the | 18 |
| highway or road shall not be
considered to end at the highway | 19 |
| or road.
The consent shall not otherwise relieve the entity
| 20 |
| granted that consent from obtaining by purchase, condemnation | 21 |
| or otherwise
the necessary approval of any owner of the fee | 22 |
| over or under which the highway
or road is located, except to | 23 |
| the extent that no such owner has paid real
estate taxes on the | 24 |
| property for the 2 years prior to the grant of the
consent. | 25 |
| This provision is not intended to absolve a utility from | 26 |
| obtaining
consent
from a lawful owner of the roadway or highway |
|
|
|
SB1439 |
- 15 - |
LRB095 10790 DRH 31034 b |
|
| 1 |
| property (i.e. a person whose
deed of conveyance lawfully | 2 |
| includes the property, whether or not made subject
to the | 3 |
| highway or road) but who does not pay taxes by reason of | 4 |
| Division 6 of
Article 10 of the Property Tax Code.
This | 5 |
| paragraph shall
not be construed as a limitation on the use for | 6 |
| highway or road purposes
of the land or other property | 7 |
| interests acquired by the public for highway
or road purposes, | 8 |
| including the space under or above such right-of-way.
| 9 |
| (m) The provisions of this Section apply to all permits | 10 |
| issued by the
Department of Transportation and the
appropriate | 11 |
| State or county highway
authority.
| 12 |
| (Source: P.A. 92-470, eff. 1-1-02; 93-357, eff. 1-1-04.)
|
|