605 ILCS 5/9-113
2021 Illinois Compiled Statutes|Chapter 605 - ROADS AND BRIDGES|605 ILCS 5/ - Illinois Highway Code.|Article 9 - General Highway Provisions

 (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. 102-449, eff. 1-1-22.)