SB2626eng 95TH GENERAL ASSEMBLY



 


 
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1     AN ACT concerning State government.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Illinois State Agency Historic Resources
5 Preservation Act is amended by changing Sections 3 and 4 and by
6 adding Section 7 as follows:
 
7     (20 ILCS 3420/3)  (from Ch. 127, par. 133c23)
8     Sec. 3. Definitions.
9     (a) "Director" means the Director of Historic Preservation
10 who shall serve as the State Historic Preservation Officer.
11     (b) "Agency" shall have the same meaning as in Section 1-20
12 of the Illinois Administrative Procedure Act, and shall
13 specifically include all agencies and entities made subject to
14 such Act by any State statute.
15     (c) "Historic resource" means any property which is either
16 publicly or privately held and which:
17         (1) is listed in the National Register of Historic
18     Places (hereafter "National Register");
19         (2) has been formally determined by the Director to be
20     eligible for listing in the National Register as defined in
21     Section 106 of Title 16 of the United States Code;
22         (3) has been nominated by the Director and the Illinois
23     Historic Sites Advisory Council for listing in the National

 

 

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1     Register;
2         (4) meets one or more criteria for listing in the
3     National Register, as determined by the Director; or
4         (5) is listed in the Illinois Register of Historic
5     Places.
6     (d) "Adverse effect" means:
7         (1) destruction or alteration of all or part of an
8     historic resource;
9         (2) isolation or alteration of the surrounding
10     environment of an historic resource;
11         (3) introduction of visual, audible, or atmospheric
12     elements which are out of character with an historic
13     resource or which alter its setting;
14         (4) neglect or improper utilization of an historic
15     resource which results in its deterioration or
16     destruction; or
17         (5) transfer or sale of an historic resource to any
18     public or private entity without the inclusion of adequate
19     conditions or restrictions regarding preservation,
20     maintenance, or use; or .
21         (6) where the project as proposed is not in conformance
22     with the Secretary of the Interior's Standards for Historic
23     Preservation.
24     (e) "Comment" means the written finding by the Director of
25 the effect of a State undertaking on an historic resource.
26     (f) "Undertaking" means any project, activity, or program

 

 

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1 that can result in changes in the character or use of historic
2 property, if any historic property is located in the area of
3 potential effects. The project, activity or program shall be
4 under the direct or indirect jurisdiction of a State agency or
5 licensed or assisted by a State agency. An undertaking
6 includes, but is not limited to, action which is:
7         (1) directly undertaken by a State agency;
8         (2) supported in whole or in part through State
9     contracts, grants, subsidies, loan guarantees, or any
10     other form of direct or indirect funding assistance; or
11         (3) carried out pursuant to a State lease, permit,
12     license, certificate, approval, or other form of
13     entitlement or permission or pursuant to a requirement that
14     a State agency be notified about action taken or to be
15     taken.
16     (g) "Committee" means the Historic Preservation Mediation
17 Committee.
18     (h) "Feasible" means capable of being accomplished in a
19 successful manner within a reasonable period of time, taking
20 into account economic, environmental, social, and
21 technological factors.
22     (i) "Private undertaking" means any undertaking that does
23 not receive public funding or is not on public lands.
24     (j) "High probability area" means any occurrence of Cahokia
25 Alluvium, Carmi Member of the Equality Formation, Grayslake
26 Peat, Parkland Sand, Peyton Colluvium, the Batavia Member of

 

 

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1 the Henry Formation, or the Mackinaw Member, as mapped by
2 Lineback et al. (1979) at a scale of 1-500,000 within permanent
3 stream floodplains and including
4         (1) 500 yards of the adjoining bluffline crest of the
5     Fox, Illinois, Kankakee, Kaskaskia, Mississippi, Ohio,
6     Rock and Wabash Rivers and 300 yards of the adjoining
7     bluffline crest of all other rivers or
8         (2) a 500 yard wide area along the shore of Lake
9     Michigan abutting the high water mark.
10 (Source: P.A. 87-717; 87-739; 87-847; 88-45.)
 
11     (20 ILCS 3420/4)  (from Ch. 127, par. 133c24)
12     Sec. 4. State agency undertakings.
13     (a) As early in the planning process as may be practicable
14 and prior to the approval of the final design or plan of any
15 undertaking by a State agency, or prior to the funding of any
16 undertaking by a State agency, or prior to an action of
17 approval or entitlement of any private undertaking by a State
18 agency, written notice of the project shall be given to the
19 Director either by the State agency or the recipients of its
20 funds, permits or licenses. The State agency shall consult with
21 the Director to determine the documentation requirements
22 necessary for identification and treatment of historic
23 resources. For the purposes of identification and evaluation of
24 historic resources, the Director may require archaeological
25 and historic investigations. Responsibility for notice and

 

 

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1 documentation may be delegated by the State agency to a local
2 or private designee.
3     (b) Within 30 days after receipt of complete and correct
4 documentation of a proposed undertaking, the Director shall
5 review and comment to the agency on the likelihood that the
6 undertaking will have an adverse effect on a historic resource.
7 In the case of a private undertaking, the Director shall, not
8 later than 30 days following the receipt of an application with
9 complete documentation of the undertaking, either approve that
10 application allowing the undertaking to proceed or tender to
11 the applicant a written statement setting forth the reasons for
12 the requirement of an archaeological investigation. If there is
13 no action within 30 days after the filing of the application
14 with the complete documentation of the undertaking, the
15 applicant may deem the application approved and may proceed
16 with the undertaking. Thereafter, all requirements for
17 archaeological investigations are waived under this Act.
18     (c) If the Director finds that an undertaking will
19 adversely effect an historic resource or is inconsistent with
20 agency policies, the State agency shall consult with the
21 Director and shall discuss alternatives to the proposed
22 undertaking which could eliminate, minimize, or mitigate its
23 adverse effect. During the consultation process, the State
24 agency shall explore all feasible and prudent plans which
25 eliminate, minimize, or mitigate adverse effects on historic
26 resources. Grantees, permittees, licensees, or other parties

 

 

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1 in interest and representatives of national, State, and local
2 units of government and public and private organizations may
3 participate in the consultation process. The process may
4 involve on-site inspections and public informational meetings
5 pursuant to regulations issued by the Historic Preservation
6 Agency.
7     (d) The State agency and the Director may agree that there
8 is a feasible and prudent alternative which eliminates,
9 minimizes, or mitigates the adverse effect of the undertaking.
10 Upon such agreement, or if the State agency and the Director
11 agree that there are no feasible and prudent alternatives which
12 eliminate, minimize, or mitigate the adverse effect, the
13 Director shall prepare a Memorandum of Agreement describing the
14 alternatives or stating the finding. The State agency may
15 proceed with the undertaking once a Memorandum of Agreement has
16 been signed by both the State agency and the Director.
17     (e) After the consultation process, the Director and the
18 State agency may fail to agree on the existence of a feasible
19 and prudent alternative which would eliminate, minimize, or
20 mitigate the adverse effect of the undertaking on the historic
21 resource. If no agreement is reached, the agency shall call a
22 public meeting in the county where the undertaking is proposed
23 within 60 days. If, within 14 days following conclusion of the
24 public meeting, the State agency and the Director fail to agree
25 on a feasible and prudent alternative, the proposed
26 undertaking, with supporting documentation, shall be submitted

 

 

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1 to the Historic Preservation Mediation Committee. The document
2 shall be sufficient to identify each alternative considered by
3 the Agency and the Director during the consultation process and
4 the reason for its rejection.
5     (f) The Mediation Committee shall consist of the Director
6 and 5 persons appointed by the Director for terms of 3 years
7 each, each of whom shall be no lower in rank than a division
8 chief and each of whom shall represent a different State
9 agency. An agency that is a party to mediation shall be
10 notified of all hearings and deliberations and shall have the
11 right to participate in deliberations as a non-voting member of
12 the Committee. Within 30 days after submission of the proposed
13 undertaking, the Committee shall meet with the Director and the
14 submitting agency to review each alternative considered by the
15 State agency and the Director and to evaluate the existence of
16 a feasible and prudent alternative. In the event that the
17 Director and the submitting agency continue to disagree, the
18 Committee shall provide a statement of findings or comments
19 setting forth an alternative to the proposed undertaking or
20 stating the finding that there is no feasible or prudent
21 alternative. The State agency shall consider the written
22 comments of the Committee and shall respond in writing to the
23 Committee before proceeding with the undertaking.
24     (g) When an undertaking is being reviewed pursuant to
25 Section 106 of the National Historic Preservation Act of 1966,
26 the procedures of this law shall not apply and any review or

 

 

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1 comment by the Director on such undertaking shall be within the
2 framework or procedures of the federal law. When an undertaking
3 involves a structure listed on the Illinois Register of
4 Historic Places, the rules and procedures of the Illinois
5 Historic Preservation Act shall apply. This subsection shall
6 not prevent the Illinois Historic Preservation Agency from
7 entering into an agreement with the Advisory Council on
8 Historic Preservation pursuant to Section 106 of the National
9 Historic Preservation Act to substitute this Act and its
10 procedures for procedures set forth in Council regulations
11 found in 36 C.F.R. Part 800.7. A State undertaking that is
12 necessary to prevent an immediate and imminent threat to life
13 or property shall be exempt from the requirements of this Act.
14 Where possible, the Director shall be consulted in the
15 determination of the exemption. In all cases, the agency shall
16 provide the Director with a statement of the reasons for the
17 exemption and shall have an opportunity to comment on the
18 exemption. The statement and the comments of the Director shall
19 be included in the annual report of the Historic Preservation
20 Agency as a guide to future actions. The provisions of this Act
21 do not apply to undertakings pursuant to the Illinois Oil and
22 Gas Act, the Surface-Mined Land Conservation and Reclamation
23 Act and the Surface Coal Mining Land Conservation and
24 Reclamation Act.
25     (h) The Director, at the Director's discretion, or upon
26 written request by any person and when the Director agrees that

 

 

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1 there is a substantial public interest in the matter, may hold
2 a public hearing before (1) making a finding that an
3 undertaking will not adversely affect an historic resource, (2)
4 making a finding that there is no prudent or feasible
5 alternative, or (3) entering into or modifying a Memorandum of
6 Agreement. The Director and the State agency shall consider the
7 matters presented at the hearing and shall, in written form,
8 document their consideration of principal issues raised in the
9 hearing.
10 (Source: P.A. 86-707; 87-739; 87-847; 87-895.)
 
11     (20 ILCS 3420/7 new)
12     Sec. 7. Standing. Any person or entity shall have standing
13 and the right to enforce the provisions of this Act. In case
14 any building or structure is demolished, constructed,
15 reconstructed, altered, repaired, converted, or maintained in
16 violation of this Act, any person or entity that shows that
17 his, her, or its property or person or other interest will be
18 substantially affected by the alleged violation, in addition to
19 other remedies, may institute any appropriate action or
20 proceeding to prevent the unlawful construction,
21 reconstruction, alteration, repair, conversion, or maintenance
22 to restrain, correct, or abate the violation.
23     In any action or proceeding for a purpose mentioned in this
24 Section, the court with jurisdiction of such action or
25 proceeding has the power to and in its discretion may issue a

 

 

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1 restraining order, a writ of mandamus to any officer, or a
2 preliminary injunction, as well as a permanent injunction, upon
3 such terms and under such conditions as will do justice and
4 enforce the purposes set forth in this Act.
5     If the court finds that the defendant has engaged in any of
6 the foregoing prohibited activities, then the court shall allow
7 the plaintiff a reasonable sum of money for the services of the
8 plaintiff's attorney. This allowance shall be a part of the
9 costs of the litigation assessed against the defendant and may
10 be recovered as such.
11     A plaintiff need not prove any specific, special, or unique
12 damages to the plaintiff or the plaintiff's property or any
13 adverse effect upon the plaintiff's property from the alleged
14 violation in order to maintain a suit under this Act.
 
15     Section 99. Effective date. This Act takes effect upon
16 becoming law.