Bill Text: IL SB1388 | 2017-2018 | 100th General Assembly | Introduced

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Bill Title: Amends the Illinois Highway Code. Provides that upon receipt of an application, consent to use a highway may be granted to any communications provider issued a certificate of public convenience and necessity from the Illinois Commerce Commission. Provides requirements (same as those under current law for a public utility) for communications provider use of a highway right-of-way if the highway authority does not have fee ownership of the property to be used. Defines "communications provider". Effective immediately.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2019-01-09 - Session Sine Die [SB1388 Detail]

Download: Illinois-2017-SB1388-Introduced.html

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100TH GENERAL ASSEMBLY State of Illinois 2017 and 2018 SB1388 Introduced 2/9/2017, by Sen. Don Harmon SYNOPSIS AS INTRODUCED:
605 ILCS 5/9-113 from Ch. 121, par. 9-113
Amends the Illinois Highway Code. Provides that upon receipt of an application, consent to use a highway may be granted to any communications provider issued a certificate of public convenience and necessity from the Illinois Commerce Commission. Provides requirements (same as those under current law for a public utility) for communications provider use of a highway right-of-way if the highway authority does not have fee ownership of the property to be used. Defines "communications provider". Effective immediately.
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A BILL FOR
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AN ACT concerning transportation.
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 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,

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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.

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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,

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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.

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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

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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

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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

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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

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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

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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, or any
communications provider as defined in this 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

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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

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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.
For purposes of this subsection (h-1), "communications
provider" means (1) any telecommunications carrier issued a
certificate of public convenience and necessity or a
certificate of service authority from the Illinois Commerce
Commission; (2) any "interconnected voice over Internet
protocol provider" as defined in Section 13-235 of the Public
Utilities Act; (3) any company providing "broadband service" as
defined in subsection (c) of Section 21-201 of the Public
Utilities Act; (4) any "cable operator" as defined in
subsection (d) of Section 21-201 of the Public Utilities Act;
or (5) any "holder" as defined in subsection (k) of Section
21-201 of the Public Utilities Act.

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(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

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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

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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. 92-470, eff. 1-1-02; 93-357, eff. 1-1-04.)

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