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Public Act 102-0449


 

Public Act 0449 102ND GENERAL ASSEMBLY

  
  
  

 


 
Public Act 102-0449
 
HB2863 EnrolledLRB102 14207 RAM 19559 b

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

Effective Date: 1/1/2022