Full Text of SB1576 100th General Assembly
SB1576ham001 100TH GENERAL ASSEMBLY | Rep. Jerry Costello, II Filed: 5/24/2017
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| 1 | | AMENDMENT TO SENATE BILL 1576
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 1576 by replacing | 3 | | everything after the enacting clause with the following:
| 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 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 |
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| 1 | | specifications for
highways for the administration of this | 2 | | Section.
In addition to rules promulgated under this subsection | 3 | | (b), the State highway
authority shall and a county highway | 4 | | authority may adopt coordination
strategies and practices | 5 | | designed and intended to establish and implement
effective | 6 | | communication respecting planned highway projects that the
| 7 | | State or county highway authority believes may require removal, | 8 | | relocation,
or modification in accordance with subsection (f) | 9 | | of this Section. The
strategies and practices adopted shall | 10 | | include but need not be limited to the
delivery of 5 year | 11 | | programs, annual programs, and the establishment of
| 12 | | coordination councils in the locales and with the utility | 13 | | participation that
will
best facilitate and accomplish the | 14 | | requirements of the State and county
highway authority acting | 15 | | under subsection (f) of this Section. The utility
participation | 16 | | shall include assisting the appropriate highway authority in
| 17 | | establishing a schedule for the removal, relocation, or | 18 | | modification of the
owner's facilities in accordance with | 19 | | subsection (f) of this Section. In
addition, each utility shall | 20 | | designate in writing to the Secretary of
Transportation or his | 21 | | or her designee an agent for notice and the delivery of
| 22 | | programs. The
coordination councils must be established on or | 23 | | before January
1, 2002. The 90 day deadline for removal, | 24 | | relocation, or modification of the
ditches, drains, track, | 25 | | rails, poles, wires, pipe line, or other equipment in
| 26 | | subsection (f) of this Section shall be enforceable upon the |
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| 1 | | establishment of
a coordination council in the district or | 2 | | locale where the property in question
is located. The | 3 | | coordination councils organized by a county highway
authority | 4 | | shall include the county engineer, the County Board
Chairman or | 5 | | his or her designee, and with such utility participation as | 6 | | will
best
facilitate and accomplish the requirements of a | 7 | | highway authority acting under
subsection (f) of this Section. | 8 | | Should a county
highway authority decide not to establish | 9 | | coordination councils,
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 waived for those | 13 | | highways.
| 14 | | (c) In the case of non-toll federal-aid fully | 15 | | access-controlled State
highways, the State highway authority | 16 | | shall not grant consent to the
location, placement or | 17 | | construction of ditches, drains, track, rails,
poles, wires, | 18 | | pipe line or other equipment upon, under or along any such
| 19 | | non-toll federal-aid fully access-controlled State highway, | 20 | | which:
| 21 | | (1) would require cutting the pavement structure | 22 | | portion of such
highway for installation or, except in the | 23 | | event of an emergency, would
require the use of any part of | 24 | | such highway right-of-way for purposes of
maintenance or | 25 | | repair. Where, however, the State highway authority
| 26 | | determines prior to installation that there is no other |
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| 1 | | access available for
maintenance or repair purposes, use by | 2 | | the entity of such highway right-of-way
shall be permitted | 3 | | for such purposes in strict accordance with the rules,
| 4 | | regulations and specifications of the State highway | 5 | | authority, provided
however, that except in the case of | 6 | | access to bridge structures, in no such
case shall an | 7 | | entity be permitted access from the through-travel lanes,
| 8 | | shoulders or ramps of the non-toll federal-aid fully | 9 | | access-controlled
State highway to maintain or repair its | 10 | | accommodation; or
| 11 | | (2) would in the judgment of the State highway | 12 | | authority, endanger or
impair any such ditches, drains, | 13 | | track, rails, poles, wires, pipe lines or
other equipment | 14 | | already in place; or
| 15 | | (3) would, if installed longitudinally within the | 16 | | access control lines
of such highway, be above ground after | 17 | | installation except that the State
highway authority may | 18 | | consent to any above ground installation upon, under
or | 19 | | along any bridge, interchange or grade separation within | 20 | | the
right-of-way which installation is otherwise in | 21 | | compliance with this
Section and any rules, regulations or | 22 | | specifications issued hereunder; or
| 23 | | (4) would be inconsistent with Federal law or with | 24 | | rules, regulations or
directives of appropriate Federal | 25 | | agencies.
| 26 | | (d) In the case of accommodations upon, under or along |
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| 1 | | non-toll
federal-aid fully access-controlled State highways | 2 | | the State highway authority
may charge an entity reasonable | 3 | | compensation for the right of that entity to
longitudinally | 4 | | locate, place or construct ditches, drains, track, rails, | 5 | | poles,
wires,
pipe line or other equipment upon, under or along | 6 | | such highway. Such
compensation may include in-kind | 7 | | compensation.
| 8 | | Where the entity applying for use of a non-toll federal-aid | 9 | | fully
access-controlled State highway right-of-way is a public | 10 | | utility company,
municipal corporation or other public or | 11 | | private corporation, association
or person, such compensation | 12 | | shall be based upon but shall not exceed a
reasonable estimate | 13 | | by the State highway authority of the fair market value
of an | 14 | | easement or leasehold for such use of the highway right-of-way.
| 15 | | Where the State highway authority determines that the | 16 | | applied-for use of
such highway right-of-way is for private | 17 | | land uses by an individual and not
for commercial purposes, the | 18 | | State highway authority may charge a lesser fee
than would be | 19 | | charged a public utility company, municipal corporation or
| 20 | | other public or private corporation or association as | 21 | | compensation for the
use of the non-toll federal-aid fully | 22 | | access-controlled State highway
right-of-way. In no case shall | 23 | | the written consent of the State highway
authority give or be | 24 | | construed to give any entity any easement, leasehold
or other | 25 | | property interest of any kind in, upon, under, above or along | 26 | | the
non-toll federal-aid fully access-controlled State highway |
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| 1 | | right-of-way.
| 2 | | Where the compensation from any entity is in whole or in | 3 | | part a fee, such
fee may be reasonably set, at the election of | 4 | | the State highway authority,
in the form of a single lump sum | 5 | | payment or a schedule of payments.
All such fees charged as | 6 | | compensation may be reviewed and adjusted upward by
the State | 7 | | highway authority once every 5 years provided that any such
| 8 | | adjustment shall be based on changes in the fair market value | 9 | | of an easement
or leasehold for such use of the non-toll | 10 | | federal-aid fully
access-controlled State highway | 11 | | right-of-way. All such fees received as
compensation by the | 12 | | State highway authority shall be deposited in the Road Fund.
| 13 | | (e) Any entity applying for consent shall submit such | 14 | | information in
such form and detail to the appropriate highway | 15 | | authority as to allow the
authority to evaluate the entity's | 16 | | application. In the case of
accommodations upon, under or along | 17 | | non-toll federal-aid fully
access-controlled State highways | 18 | | the entity applying for such consent shall
reimburse the State | 19 | | highway authority for all of the authority's reasonable
| 20 | | expenses in evaluating that entity's application, including | 21 | | but not limited
to engineering and legal fees.
| 22 | | (f) Any ditches, drains, track, rails, poles, wires, pipe | 23 | | line, or
other
equipment located, placed, or constructed upon, | 24 | | under, or along a highway
with the consent of the State or | 25 | | county highway authority under this
Section shall,
upon written | 26 | | notice by the State or county highway authority be
removed,
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| 1 | | relocated, or modified by the owner, the owner's agents, | 2 | | contractors, or
employees at no expense to the State or county | 3 | | highway
authority when and as deemed necessary by the State or | 4 | | county highway
authority for highway
or highway safety | 5 | | purposes.
The notice shall be properly given after the | 6 | | completion of engineering plans,
the receipt of the necessary | 7 | | permits issued by the appropriate State and
county highway | 8 | | authority to begin work, and the establishment of sufficient
| 9 | | rights-of-way for a given utility authorized by the State or | 10 | | county highway
authority to remain on the highway right-of-way | 11 | | such that the unit of local
government or other owner of any | 12 | | facilities receiving notice in accordance
with this subsection | 13 | | (f) can proceed with relocating, replacing, or
reconstructing | 14 | | the ditches, drains, track, rails, poles, wires, pipe line, or
| 15 | | other
equipment. If a permit application to relocate on a | 16 | | public right-of-way is not
filed within 15 days of the receipt | 17 | | of final engineering plans, the notice
precondition of a permit | 18 | | to begin work is waived. However, under no
circumstances shall | 19 | | this notice provision be construed to require the State or
any
| 20 | | government department or agency to purchase additional
| 21 | | rights-of-way to accommodate utilities.
If, within 90 days | 22 | | after receipt of such
written notice,
the ditches, drains, | 23 | | track, rails, poles, wires, pipe line, or other
equipment
have | 24 | | not been removed, relocated, or modified to the reasonable | 25 | | satisfaction
of the State or county highway authority, or if
| 26 | | arrangements are not made satisfactory to the State or county
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| 1 | | highway authority for such removal, relocation, or | 2 | | modification, the State
or county
highway
authority may remove, | 3 | | relocate, or modify such ditches, drains, track,
rails, poles, | 4 | | wires, pipe line, or other equipment and bill the owner
thereof | 5 | | for the total cost of such removal, relocation, or | 6 | | modification.
The scope of the project shall be taken into | 7 | | consideration by the State or
county highway authority in | 8 | | determining satisfactory arrangements.
The State or county | 9 | | highway authority shall determine the terms of payment
of those | 10 | | costs
provided that all costs billed by the State or county | 11 | | highway authority
shall not be made
payable over more than a 5 | 12 | | year period from the date of billing.
The State and county | 13 | | highway authority shall have the power to extend the
time of | 14 | | payment in cases of demonstrated financial hardship by a unit | 15 | | of
local government or other public owner of any facilities | 16 | | removed, relocated,
or modified from the highway right-of-way | 17 | | in accordance with this
subsection (f).
This
paragraph shall | 18 | | not be construed to prohibit the State or county highway
| 19 | | authority
from paying any part of the cost of removal, | 20 | | relocation, or modification
where such payment is otherwise | 21 | | provided for by State or federal statute or
regulation.
At any | 22 | | time within 90 days after written notice was given, the owner | 23 | | of the
drains, track, rails, poles, wires, pipe line, or other | 24 | | equipment may request
the district engineer or, if appropriate, | 25 | | the county engineer for a waiver of
the 90 day deadline. The | 26 | | appropriate district or county engineer shall make a
decision |
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| 1 | | concerning waiver within 10 days of receipt of the request and | 2 | | may
waive the 90 day deadline if he or she makes a written | 3 | | finding as to the
reasons for waiving the deadline. Reasons for | 4 | | waiving the deadline shall be
limited to acts of God, war, the | 5 | | scope of the project, the State failing to
follow the proper | 6 | | notice
procedure, and any other cause beyond reasonable control | 7 | | of the owner of
the facilities. Waiver must not be unreasonably | 8 | | withheld. If 90 days after
written notice was given, the | 9 | | ditches, drains, track, rails, poles, wires, pipe
line, or | 10 | | other equipment have not been removed, relocated, or modified | 11 | | to
the satisfaction of the State or county highway authority, | 12 | | no waiver of
deadline has been requested or issued by the | 13 | | appropriate district or county
engineer, and no satisfactory | 14 | | arrangement has been made with the
appropriate State or county | 15 | | highway authority, the State or county highway
authority or the | 16 | | general contractor of the building project may file a
complaint | 17 | | in the circuit court for an emergency order to direct and | 18 | | compel
the owner to remove, relocate, or modify the drains, | 19 | | track, rails, poles,
wires,
pipe line, or other equipment to | 20 | | the satisfaction of the appropriate highway
authority. The | 21 | | complaint for an order shall be brought in the circuit in which
| 22 | | the subject matter of the complaint is situated or, if the | 23 | | subject matter of
the
complaint is situated in more than one | 24 | | circuit, in any one of those
circuits.
| 25 | | (g) It shall be the sole responsibility of the entity, | 26 | | without expense to
the State highway authority, to maintain and |
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| 1 | | repair its ditches,
drains, track, rails, poles, wires, pipe | 2 | | line or other equipment after it is
located, placed or | 3 | | constructed upon, under or along any State highway and in no
| 4 | | case shall the State highway authority thereafter be liable or | 5 | | responsible to
the
entity for any damages or liability of any | 6 | | kind whatsoever incurred by the
entity or to the entity's | 7 | | ditches, drains, track, rails, poles, wires, pipe
line or other | 8 | | equipment.
| 9 | | (h) Except as provided in subsection (h-1), upon receipt of | 10 | | an
application therefor,
consent to so use a highway may
be | 11 | | granted subject to such terms and conditions not inconsistent | 12 | | with
this Code as the highway authority deems for the best | 13 | | interest of the
public.
The terms and conditions required by | 14 | | the appropriate highway authority may
include but need not be | 15 | | limited to participation by the party granted consent
in the | 16 | | strategies and practices adopted under subsection (b) of this | 17 | | Section. If the highway authority does not have fee ownership | 18 | | of the property over or under the highway or road or the right | 19 | | to grant use of the property, the petitioner shall pay to the | 20 | | owners of the property all damages the owners may sustain by | 21 | | reason of use of the property, which shall be agreed upon by | 22 | | the petitioner and the owners or ascertained and paid in the | 23 | | manner provided by law for the exercise of the right of eminent | 24 | | domain.
The
petitioner shall pay to the owners of property
| 25 | | abutting upon the affected highways established as though by
| 26 | | common law plat all damages the owners may sustain by reason of |
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| 1 | | such use of
the highway, such damages to be ascertained and | 2 | | paid in the manner provided by
law for the exercise of the | 3 | | right of eminent domain.
| 4 | | (h-1) With regard to any public utility, as defined in | 5 | | Section 3-105 of
the Public Utilities Act, engaged in public | 6 | | water or public sanitary sewer
service that comes under the | 7 | | jurisdiction of the Illinois Commerce Commission,
upon receipt | 8 | | of an application therefor,
consent to so use a highway may
be | 9 | | granted subject to such terms and conditions not inconsistent | 10 | | with
this Code as the highway authority deems for the best | 11 | | interest of the
public.
The terms and conditions required by | 12 | | the appropriate highway authority may
include but need not be | 13 | | limited to participation by the party granted consent
in the | 14 | | strategies and practices adopted under subsection (b) of this | 15 | | Section.
If the highway authority does not have fee ownership | 16 | | of the property, the
petitioner shall pay to the owners of | 17 | | property located in the highway
right-of-way
all damages the | 18 | | owners may sustain by reason of such use of
the highway, such | 19 | | damages to be ascertained and paid in the manner provided by
| 20 | | law for the exercise of the right of eminent domain. The | 21 | | consent shall not
otherwise relieve the entity granted that
| 22 | | consent from obtaining by purchase, condemnation, or otherwise | 23 | | the
necessary approval of any owner of the fee over or under | 24 | | which the
highway or road is located, except to the extent that | 25 | | no such owner has
paid real estate taxes on the property for | 26 | | the 2 years prior to the
grant of the consent. Owners of |
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| 1 | | property that abuts the right-of-way but who
acquired the
| 2 | | property through a conveyance that either expressly excludes | 3 | | the property
subject to the right-of-way or that describes the | 4 | | property conveyed as ending
at the right-of-way or being | 5 | | bounded by the right-of-way or road shall not be
considered | 6 | | owners of property located in the right-of-way and shall not be
| 7 | | entitled to damages by reason of the use of the highway or road | 8 | | for utility
purposes, except that this provision shall not | 9 | | relieve the public utility
from the
obligation to pay for any | 10 | | physical damage it causes to
improvements lawfully located in | 11 | | the right-of-way. Owners of abutting
property whose | 12 | | descriptions include the right-of-way but are made subject to
| 13 | | the right-of-way shall be entitled to compensation for use of | 14 | | the
right-of-way.
If the property subject to the right-of-way | 15 | | is not owned by the
owners of the abutting property (either | 16 | | because it is expressly excluded from
the property conveyed to | 17 | | an abutting property owner or the property as conveyed
ends at | 18 | | or is bounded by the right-of-way or road), then the petitioner | 19 | | shall
pay any damages, as so calculated, to
the person or | 20 | | persons who have paid real estate taxes for the property as
| 21 | | reflected in the
county tax records. If no person has paid real | 22 | | estate taxes, then the
public interest permits the installation | 23 | | of the facilities without payment of
any damages. This | 24 | | provision of this
amendatory Act of the 93rd General Assembly | 25 | | is intended to clarify, by
codification, existing law and is | 26 | | not intended to change the law.
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| 1 | | (i) Such consent shall be granted by the Department in the | 2 | | case of a
State highway; by the county board or its designated | 3 | | county superintendent
of highways in the case of a county | 4 | | highway; by
either the highway commissioner or the county | 5 | | superintendent of highways
in the case of a township or | 6 | | district road, provided that if consent is
granted by the | 7 | | highway commissioner, the petition shall be filed with
the | 8 | | commissioner at least 30 days prior to the proposed date of the
| 9 | | beginning of construction, and that if written consent is not | 10 | | given by
the commissioner within 30 days after receipt of the | 11 | | petition, the
applicant may make written application to the | 12 | | county superintendent of
highways for consent to the | 13 | | construction. This Section does not
vitiate, extend or | 14 | | otherwise affect any consent granted in accordance
with law | 15 | | prior to the effective date of this Code to so use any highway.
| 16 | | (j) Nothing in this Section shall limit the right of a | 17 | | highway
authority to permit the location, placement or | 18 | | construction or any ditches,
drains, track, rails, poles, | 19 | | wires, pipe line or other equipment upon,
under or along any | 20 | | highway or road as a part of its highway or road
facilities or | 21 | | which the highway authority determines is necessary to
service | 22 | | facilities required for operating the highway or road, | 23 | | including
rest areas and weigh stations.
| 24 | | (k) Paragraphs (c) and (d) of this Section shall not apply | 25 | | to any
accommodation located, placed or constructed with the | 26 | | consent of the State
highway authority upon, under or along any |
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| 1 | | non-toll federal-aid fully
access-controlled State
highway | 2 | | prior to July 1, 1984, provided that accommodation was | 3 | | otherwise
in compliance with the rules, regulations and | 4 | | specifications of the State
highway authority.
| 5 | | (l) Except as provided in subsection (l-1), the consent to | 6 | | be granted
pursuant to this Section by the appropriate
highway | 7 | | authority shall be effective only to the extent of the property
| 8 | | interest of the State or government unit served by that highway | 9 | | authority.
Such consent shall not be binding on any owner of | 10 | | the fee over or under which
the highway or road is located and | 11 | | shall not otherwise relieve the entity
granted that consent | 12 | | from obtaining by purchase, condemnation or otherwise
the | 13 | | necessary approval of any owner of the fee over or under which | 14 | | the highway
or road is located.
This paragraph shall
not be | 15 | | construed as a limitation on the use for highway or road | 16 | | purposes
of the land or other property interests acquired by | 17 | | the public for highway
or road purposes, including the space | 18 | | under or above such right-of-way.
| 19 | | (l-1) With regard to any public utility, as defined in | 20 | | Section 3-105 of
the
Public Utilities Act, engaged in public | 21 | | water or public sanitary sewer service
that comes under the | 22 | | jurisdiction of the Illinois Commerce Commission, the
consent | 23 | | to be granted pursuant to this Section by the appropriate
| 24 | | highway authority shall be effective only to the extent of the | 25 | | property
interest of the State or government unit served by | 26 | | that highway authority.
Such consent shall not be binding on |
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| 1 | | any owner of the fee over or under which
the highway or road is | 2 | | located but shall be binding on any abutting property
owner | 3 | | whose property boundary ends at the right-of-way of the highway | 4 | | or road.
For purposes of the preceding sentence, property that | 5 | | includes a portion of
a highway or road but is subject to the | 6 | | highway or road shall not be
considered to end at the highway | 7 | | or road.
The consent shall not otherwise relieve the entity
| 8 | | granted that consent from obtaining by purchase, condemnation | 9 | | or otherwise
the necessary approval of any owner of the fee | 10 | | over or under which the highway
or road is located, except to | 11 | | the extent that no such owner has paid real
estate taxes on the | 12 | | property for the 2 years prior to the grant of the
consent. | 13 | | This provision is not intended to absolve a utility from | 14 | | obtaining
consent
from a lawful owner of the roadway or highway | 15 | | property (i.e. a person whose
deed of conveyance lawfully | 16 | | includes the property, whether or not made subject
to the | 17 | | highway or road) but who does not pay taxes by reason of | 18 | | Division 6 of
Article 10 of the Property Tax Code.
This | 19 | | paragraph shall
not be construed as a limitation on the use for | 20 | | highway or road purposes
of the land or other property | 21 | | interests acquired by the public for highway
or road purposes, | 22 | | including the space under or above such right-of-way.
| 23 | | (m) The provisions of this Section apply to all permits | 24 | | issued by the
Department of Transportation and the
appropriate | 25 | | State or county highway
authority.
| 26 | | (Source: P.A. 92-470, eff. 1-1-02; 93-357, eff. 1-1-04.)
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| 1 | | Section 99. Effective date. This Act takes effect upon | 2 | | becoming law.".
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