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92_SB0699enr
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1 AN ACT concerning highways.
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
5 changing 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 public utility
9 company, municipal corporation or other public or private
10 corporation, association or person shall be located, placed
11 or constructed upon, under or along any highway, or upon any
12 township or district road, without first obtaining the
13 written consent of the appropriate highway authority as
14 hereinafter provided for in this Section.
15 (b) The State and county highway authorities are
16 authority is authorized to promulgate reasonable and
17 necessary rules, regulations, and specifications for State
18 highways for the administration of this Section. In addition
19 to rules promulgated under this subsection (b), the State
20 highway authority shall and a county highway authority may
21 adopt coordination strategies and practices designed and
22 intended to establish and implement effective communication
23 respecting planned highway projects that the State or county
24 highway authority believes may require removal, relocation,
25 or modification in accordance with subsection (f) of this
26 Section. The strategies and practices adopted shall include
27 but need not be limited to the delivery of 5 year programs,
28 annual programs, and the establishment of coordination
29 councils in the locales and with the utility participation
30 that will best facilitate and accomplish the requirements of
31 the State and county highway authority acting under
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1 subsection (f) of this Section. The utility participation
2 shall include assisting the appropriate highway authority in
3 establishing a schedule for the removal, relocation, or
4 modification of the owner's facilities in accordance with
5 subsection (f) of this Section. In addition, each utility
6 shall designate in writing to the Secretary of Transportation
7 or his or her designee an agent for notice and the delivery
8 of programs. The coordination councils must be established on
9 or before January 1, 2002. The 90 day deadline for removal,
10 relocation, or modification of the ditches, drains, track,
11 rails, poles, wires, pipe line, or other equipment in
12 subsection (f) of this Section shall be enforceable upon the
13 establishment of a coordination council in the district or
14 locale where the property in question is located. The
15 coordination councils organized by a county highway authority
16 shall include the county engineer, the County Board Chairman
17 or his or her designee, and with such utility participation
18 as will best facilitate and accomplish the requirements of a
19 highway authority acting under subsection (f) of this
20 Section. Should a county highway authority decide not to
21 establish coordination councils, the 90 day deadline for
22 removal, relocation, or modification of the ditches, drains,
23 track, rails, poles, wires, pipe line, or other equipment in
24 subsection (f) of this Section shall be waived for those
25 highways.
26 (c) In the case of non-toll federal-aid fully
27 access-controlled State highways, the State highway authority
28 shall not grant consent to the location, placement or
29 construction of ditches, drains, track, rails, poles, wires,
30 pipe line or other equipment upon, under or along any such
31 non-toll federal-aid fully access-controlled State highway,
32 which:
33 (1) would require cutting the pavement structure
34 portion of such highway for installation or, except in
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1 the event of an emergency, would require the use of any
2 part of such highway right-of-way for purposes of
3 maintenance or repair. Where, however, the State highway
4 authority determines prior to installation that there is
5 no other access available for maintenance or repair
6 purposes, use by the entity of such highway right-of-way
7 shall be permitted for such purposes in strict accordance
8 with the rules, regulations and specifications of the
9 State highway authority, provided however, that except in
10 the case of access to bridge structures, in no such case
11 shall an entity be permitted access from the
12 through-travel lanes, shoulders or ramps of the non-toll
13 federal-aid fully access-controlled State highway to
14 maintain or repair its accommodation; or
15 (2) would in the judgment of the State highway
16 authority, endanger or impair any such ditches, drains,
17 track, rails, poles, wires, pipe lines or other equipment
18 already in place; or
19 (3) would, if installed longitudinally within the
20 access control lines of such highway, be above ground
21 after installation except that the State highway
22 authority may consent to any above ground installation
23 upon, under or along any bridge, interchange or grade
24 separation within the right-of-way which installation is
25 otherwise in compliance with this Section and any rules,
26 regulations or specifications issued hereunder; or
27 (4) would be inconsistent with Federal law or with
28 rules, regulations or directives of appropriate Federal
29 agencies.
30 (d) In the case of accommodations upon, under or along
31 non-toll federal-aid fully access-controlled State highways
32 the State highway authority may charge an entity reasonable
33 compensation for the right of that entity to longitudinally
34 locate, place or construct ditches, drains, track, rails,
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1 poles, wires, pipe line or other equipment upon, under or
2 along such highway. Such compensation may include in-kind
3 compensation.
4 Where the entity applying for use of a non-toll
5 federal-aid fully access-controlled State highway
6 right-of-way is a public utility company, municipal
7 corporation or other public or private corporation,
8 association or person, such compensation shall be based upon
9 but shall not exceed a reasonable estimate by the State
10 highway authority of the fair market value of an easement or
11 leasehold for such use of the highway right-of-way. Where
12 the State highway authority determines that the applied-for
13 use of such highway right-of-way is for private land uses by
14 an individual and not for commercial purposes, the State
15 highway authority may charge a lesser fee than would be
16 charged a public utility company, municipal corporation or
17 other public or private corporation or association as
18 compensation for the use of the non-toll federal-aid fully
19 access-controlled State highway right-of-way. In no case
20 shall the written consent of the State highway authority give
21 or be construed to give any entity any easement, leasehold or
22 other property interest of any kind in, upon, under, above or
23 along the non-toll federal-aid fully access-controlled State
24 highway right-of-way.
25 Where the compensation from any entity is in whole or in
26 part a fee, such fee may be reasonably set, at the election
27 of the State highway authority, in the form of a single lump
28 sum payment or a schedule of payments. All such fees charged
29 as compensation may be reviewed and adjusted upward by the
30 State highway authority once every 5 years provided that any
31 such adjustment shall be based on changes in the fair market
32 value of an easement or leasehold for such use of the
33 non-toll federal-aid fully access-controlled State highway
34 right-of-way. All such fees received as compensation by the
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1 State highway authority shall be deposited in the Road Fund.
2 (e) Any entity applying for consent shall submit such
3 information in such form and detail to the appropriate
4 highway authority as to allow the authority to evaluate the
5 entity's application. In the case of accommodations upon,
6 under or along non-toll federal-aid fully access-controlled
7 State highways the entity applying for such consent shall
8 reimburse the State highway authority for all of the
9 authority's reasonable expenses in evaluating that entity's
10 application, including but not limited to engineering and
11 legal fees.
12 (f) Any ditches, drains, track, rails, poles, wires,
13 pipe line, or other equipment located, placed, or constructed
14 upon, under, or along a State highway with the consent of the
15 State or county highway authority under this Section shall,
16 upon written notice by the State or county, highway authority
17 be removed, relocated, or modified by the owner, the owner's
18 agents, contractors, or employees subject to removal,
19 relocation or modification at no expense to the State or
20 county highway authority when and as deemed necessary by the
21 State or county highway authority for highway or highway
22 safety purposes. The notice shall be properly given after the
23 completion of engineering plans, the receipt of the necessary
24 permits issued by the appropriate State and county highway
25 authority to begin work, and the establishment of sufficient
26 rights-of-way for a given utility authorized by the State or
27 county highway authority to remain on the highway
28 right-of-way such that the unit of local government or other
29 owner of any facilities receiving notice in accordance with
30 this subsection (f) can proceed with relocating, replacing,
31 or reconstructing the ditches, drains, track, rails, poles,
32 wires, pipe line, or other equipment. If a permit
33 application to relocate on a public right-of-way is not filed
34 within 15 days of the receipt of final engineering plans, the
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1 notice precondition of a permit to begin work is waived.
2 However, under no circumstances shall this notice provision
3 be construed to require the State or any government
4 department or agency to purchase additional rights-of-way to
5 accommodate utilities. If, within 90 60 days after receipt of
6 such written notice, the ditches, drains, track, rails,
7 poles, wires, pipe line, or other equipment have not been
8 removed, relocated, or modified to the reasonable
9 satisfaction of the State or county highway authority, or if
10 arrangements are not made satisfactory to the State or county
11 highway authority for such removal, relocation, or
12 modification, the State or county highway authority may
13 remove, relocate, or modify such ditches, drains, track,
14 rails, poles, wires, pipe line, or other equipment and bill
15 the owner thereof for the total cost of such removal,
16 relocation, or modification. The scope of the project shall
17 be taken into consideration by the State or county highway
18 authority in determining satisfactory arrangements. The State
19 or county highway authority shall determine the terms of
20 payment of those costs provided that all costs billed by the
21 State or county highway authority shall not be made payable
22 over more than a 5 year period from the date of billing. The
23 State and county highway authority shall have the power to
24 extend the time of payment in cases of demonstrated financial
25 hardship by a unit of local government or other public owner
26 of any facilities removed, relocated, or modified from the
27 highway right-of-way in accordance with this subsection (f).
28 This paragraph shall not be construed to prohibit the State
29 or county highway authority from paying any part of the cost
30 of removal, relocation, or modification where such payment is
31 otherwise provided for by State or federal statute or
32 regulation. At any time within 90 days after written notice
33 was given, the owner of the drains, track, rails, poles,
34 wires, pipe line, or other equipment may request the district
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1 engineer or, if appropriate, the county engineer for a waiver
2 of the 90 day deadline. The appropriate district or county
3 engineer shall make a decision concerning waiver within 10
4 days of receipt of the request and may waive the 90 day
5 deadline if he or she makes a written finding as to the
6 reasons for waiving the deadline. Reasons for waiving the
7 deadline shall be limited to acts of God, war, the scope of
8 the project, the State failing to follow the proper notice
9 procedure, and any other cause beyond reasonable control of
10 the owner of the facilities. Waiver must not be unreasonably
11 withheld. If 90 days after written notice was given, the
12 ditches, drains, track, rails, poles, wires, pipe line, or
13 other equipment have not been removed, relocated, or modified
14 to the satisfaction of the State or county highway authority,
15 no waiver of deadline has been requested or issued by the
16 appropriate district or county engineer, and no satisfactory
17 arrangement has been made with the appropriate State or
18 county highway authority, the State or county highway
19 authority or the general contractor of the building project
20 may file a complaint in the circuit court for an emergency
21 order to direct and compel the owner to remove, relocate, or
22 modify the drains, track, rails, poles, wires, pipe line, or
23 other equipment to the satisfaction of the appropriate
24 highway authority. The complaint for an order shall be
25 brought in the circuit in which the subject matter of the
26 complaint is situated or, if the subject matter of the
27 complaint is situated in more than one circuit, in any one of
28 those circuits.
29 (g) It shall be the sole responsibility of the entity,
30 without expense to the State highway authority, to maintain
31 and repair its ditches, drains, track, rails, poles, wires,
32 pipe line or other equipment after it is located, placed or
33 constructed upon, under or along any State highway and in no
34 case shall the State highway authority thereafter be liable
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1 or responsible to the entity for any damages or liability of
2 any kind whatsoever incurred by the entity or to the entity's
3 ditches, drains, track, rails, poles, wires, pipe line or
4 other equipment.
5 (h) Upon receipt of an application therefor, consent to
6 so use a highway may be granted subject to such terms and
7 conditions not inconsistent with this Code as the highway
8 authority deems for the best interest of the public. The
9 terms and conditions required by the appropriate highway
10 authority may include but need not be limited to
11 participation by the party granted consent in the strategies
12 and practices adopted under subsection (b) of this Section.
13 The petitioner shall pay to the owners of property abutting
14 upon the affected highways established as though by common
15 law plat all damages the owners may sustain by reason of such
16 use of the highway, such damages to be ascertained and paid
17 in the manner provided by law for the exercise of the right
18 of eminent domain.
19 (i) Such consent shall be granted by the Department in
20 the case of a State highway; by the county board or its
21 designated county superintendent of highways in the case of a
22 county highway; by either the highway commissioner or the
23 county superintendent of highways in the case of a township
24 or district road, provided that if consent is granted by the
25 highway commissioner, the petition shall be filed with the
26 commissioner at least 30 days prior to the proposed date of
27 the beginning of construction, and that if written consent is
28 not given by the commissioner within 30 days after receipt
29 of the petition, the applicant may make written application
30 to the county superintendent of highways for consent to the
31 construction. This Section does not vitiate, extend or
32 otherwise affect any consent granted in accordance with law
33 prior to the effective date of this Code to so use any
34 highway.
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1 (j) Nothing in this Section shall limit the right of a
2 highway authority to permit the location, placement or
3 construction or any ditches, drains, track, rails, poles,
4 wires, pipe line or other equipment upon, under or along any
5 highway or road as a part of its highway or road facilities
6 or which the highway authority determines is necessary to
7 service facilities required for operating the highway or
8 road, including rest areas and weigh stations.
9 (k) Paragraphs (c) and (d) of this Section shall not
10 apply to any accommodation located, placed or constructed
11 with the consent of the State highway authority upon, under
12 or along any non-toll federal-aid fully access-controlled
13 State highway prior to July 1, 1984, provided that
14 accommodation was otherwise in compliance with the rules,
15 regulations and specifications of the State highway
16 authority.
17 (l) The consent to be granted pursuant to this Section
18 by the appropriate highway authority shall be effective only
19 to the extent of the property interest of the State or
20 government unit served by that highway authority. Such
21 consent shall not be binding on any owner of the fee over or
22 under which the highway or road is located and shall not
23 otherwise relieve the entity granted that consent from
24 obtaining by purchase, condemnation or otherwise the
25 necessary approval of any owner of the fee over or under
26 which the highway or road is located. This paragraph shall
27 not be construed as a limitation on the use for highway or
28 road purposes of the land or other property interests
29 acquired by the public for highway or road purposes,
30 including the space under or above such right-of-way.
31 (m) The provisions of this Section apply to all permits
32 issued by the Department of Transportation and the
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1 appropriate State or county highway authority.
2 (Source: P.A. 85-540.)
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