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92nd General Assembly

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Public Act 92-0470

SB699 Enrolled                                 LRB9207709DHmb

    AN ACT concerning highways.

    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
authority   is   authorized   to  promulgate  reasonable  and
necessary rules, regulations, and  specifications  for  State
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 State 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  subject   to   removal,
relocation  or  modification  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 60 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)  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.
    (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.  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)  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.
    (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. 85-540.)
    Passed in the General Assembly May 30, 2001.
    Approved August 22, 2001.
    Effective January 01, 2002.

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