A. 1. A permit shall be required for the replacement, relocation, or removal of an existing utility or facility and any manner or form of work relating to the construction or placement of a new utility or facility within the right-of-way of any County Highway. All work associated with a utility or facility to be placed or already existing within the right-of-way of a County Highway shall be performed at no cost to the County.
2. If the proposed utility or facility work is to be accomplished as part of an access permit or adjacent private development project, said utility or facility work shall be included on the engineering plans submitted for the access permit or adjacent private development project, but shall be permitted separately by the respective utility company or public agency responsible for the maintenance and operation of the utility or facility.
3. Non-public utilities or non-public facilities are generally prohibited from placement within County Highway rights-of-way. Special approval by the McHenry County Division of Transportation will be considered on a case-by-case basis with additional requirements, specifications and guarantees.
4. Any placement, relocation, reconstruction, repair, modification, removal or enlargement does not relieve the permittee from obtaining permission from the legal property owner where the County Highway right-of-way is in the form of an easement or dedication limited to public road or highway purposes.
COMMENTARY: Any major utility or facility work shall require a permit.
Examples of the types of utilities requiring a permit include, but are not limited to, installation of new below ground electric lines, telephone lines, telecommunication lines, cable television lines, and natural gas lines and all related appurtenances, including service connections to individual users; installation of new pole lines for various utilities; and installation or replacement of municipal potable water or sanitary sewer lines.
5. Examples of the types of utilities requiring a permit include, but are not limited to:
a. Cable television facilities and cable
b. Electric cables
c. Natural gas pipelines
d. Telecommunication cables
e. Service connections of utilities
f. Related appurtenances to above types of utilities
g. Installation or relocation of utility poles
6. Examples of the types of public facilities/utilities and non-public facilities that may be permitted by the County include, but are not limited to:
a. Public Facilities/Utilities.
(1) Multi-use paths
(2) Fire or police emergency signaling systems
(3) Sanitary sewers, potable watermains, and related services
(4) Pedestrian crossing structures
(5) Pedestrian crossing features (sidewalk, special signage).
(6) Public transportation shelters
(7) Sidewalks
(8) Storm drainage systems not operated or maintained by the County
(9) Street lighting
(10) Traffic signals
(11) Red light running cameras
(12) Municipal or governmental owned or operated facilities
b. Non-Public Facilities.
(1) Contaminated and groundwater remediation piping
(2) Enclosed/underground conveyors for movement of granular materials under a highway
(3) Monitoring wells
7. Appurtenances shall consist of above ground facilities such as junction boxes, switch gear, pedestals, transformers and below ground equipment such as vaults, junction chambers, etc.
8. Not all County Highway rights-of-way are owned fee-simple by the County. Some rights-of-way are in the form of easements, prescriptive right-of-ways or dedications for the sole purpose of providing and allowing for the existence, use and maintenance of the roadway and related appurtenances. In these circumstances, legal ownership of the adjacent private property may extend to the center of the roadway. It is the responsibility of the utility or facility owner to determine whether the placement of said utility or facility requires property owner’s permission (see § 10.12.350F.).
B. Purpose of County Highways. The rights-of-way of County Highways are established for the location of highway pavements and their related appurtenances. In order to minimize impacts to adjacent private properties and to minimize the cost to the motoring public, County Highway rights-of-ways are minimally established for highway uses and do not include additional areas for utilities and facilities. Therefore, all utilities and facilities shall be located within such rights-of-ways in a manner that will not impede or conflict with any existing highway or associated appurtenance or any future improvement or widening of a highway and the construction or reconstruction of associated appurtenances, whether by a County construction project or a permitted improvement by others. A utility or facility is not considered a highway appurtenance. Installation of any above ground utility appurtenances must meet the clear zone setback requirements, for installations proposed within the County Highway right-of-ways.
C. Required Relocation of Existing Utilities and Facilities.
1. Whenever a County Highway is improved, widened, reconstructed, resurfaced, modified or additional lanes are added by the County or a permitted improvement of the County Highway is constructed by others, the owner of the existing utility or facility or the permittee shall relocate, remove, or modify the utility or facility from under the widened pavement and shoulders or curb line or out of the limits of the improvement at no cost to the County. The McHenry County Division of Transportation shall determine the need and limits for said relocation, removal or modification on a case-by-case basis.
2. Any and all additional or extraordinary costs that may be incurred by the County due to the presence, abandonment, or proposed placement of any utility or facility within the right-of-way of a County Highway shall be borne solely by the owner of said utility or facility. Payment to the County for said additional or extraordinary costs shall be made as determined by the McHenry County Division of Transportation.
D. Conflicts with Existing Utilities and Facilities/Insufficient Space.
1. In the event that the placement, construction, relocation, modification, enlargement or any manner of work to be performed on any utility or facility, existing or proposed, within the County Highway rights-of-way results in insufficient space for the placement of said utility or facility, the County is not responsible for providing additional space in any manner or form. In the event the County determines that there is insufficient space within the right-of-way for the proposed placement construction, relocation, modification, enlargement or proposed related construction activities or that such work would be detrimental to the operation, maintenance or safety of the County Highway, the proposed work may not be permitted. Installation of any above ground utility appurtenances must meet the clear zone setback requirements, for installations proposed within the County Highway right-of-ways.
2. In the event of a conflict between any existing or proposed utility or facility located or proposed to be located within the right-of-way of a County Highway, said conflict shall be resolved by the owners of said utilities or facilities. The resolution of any conflict shall not result in the County incurring any costs, either now or in the future, and shall not; result in an undue delay to the utility or facility construction that would unduly impede traffic or hinder the operation of the County Highway. The resolution of any conflict must be a part of any permitted work and shall be approved by the McHenry County Division of Transportation through the permitting process required by this Ordinance if the proposed resolution involves work to be performed within the right-of-way of a County Highway.
E. Other Agency Permits and Approvals. The issuance of a permit under the rules, regulations, and specifications of this Ordinance does not relieve, excuse, diminish or negate, in any manner or form, the authority, rules, requirements or permission that may be required by any governmental authority or person that regulates the placement, location, construction, reconstruction, enlargement, removal, relocation, modification, abandonment, or any manner of work to be performed on any utility or facility subsequent to the issuance of a permit under the provisions of this Ordinance. The owner of the utility or facility may be required to submit evidence of approval and compliance with rules, regulations and specifications of any other applicable regulatory agency or person for the work to be performed within the right-of-way of a County Highway.
F. Property Owner’s Permission. The issuance of a permit under the rules, regulations, requirements and specifications of this Ordinance does not relieve the permittee from obtaining permission from the legal property owner to locate the utility or facility on any County Highway where the right-of-way is in the form of an easement or dedication for public road purposes and the County does not own title to the right-of-way. The rules, regulations, requirements, and specifications of such permission shall not be in conflict with the provisions of this Ordinance nor supersede, diminish, alter, or in any manner or form interfere with use of said easement or public road dedication, nor shall said permission result in any costs to the County either now or in the future. It shall be the responsibility of the permittee, not the McHenry County Division of Transportation, to determine when permission is required from the legal property owner. Failure to obtain permission can be just cause to deny issuance of a permit by the County or to suspend or revoke an issued permit.
G. Commencement of Work. No work within the County Highway right-of-way shall commence until such time as a permit is issued in accordance with the rules and regulations of this Ordinance. No delivery, stock piling or temporary placement of materials, storage of equipment, or other preparatory work shall take place within the County Highway right-of-ways until such time as a permit is issued in accordance with the rules and regulations of this Ordinance.
H. Emergency Maintenance Work.
1. Emergency work related to utilities and facilities shall not require issuance of a permit in advance of said emergency subject to the following conditions:
a. The emergency work is immediately required to protect the public health, safety, and welfare.
b. The emergency work is required as a result of a natural disaster, flooding, storm-related damage, or other state of emergency.
c. The McHenry County Division of Transportation is notified during normal business hours of the required emergency work. If the emergency occurs after normal business hours, the McHenry County Division of Transportation shall still be notified within twenty-four (24) hours of identification of the emergency work and with joint notification to the McHenry County Sheriffs Department or the local municipality which has police jurisdiction if the highway requires lane closures.
d. The emergency work is limited to interim repair or maintenance activities of the utility or facility in order to remove the immediate hazard or potential hazard to the public.
e. All necessary traffic control is provided in accordance with the requirement of the Manual on Uniform Traffic Control Devices (MUTCD).
f. A permit is applied for, after the fact, that clearly identifies the nature and location of the emergency work as would have normally been submitted if the work had not been of an emergency nature.
2. Initiation of emergency repairs or maintenance as authorized under this provision that subsequently require permanent reconstruction, modification or relocation of the utility or facility does not relieve, excuse, diminish or negate, in any manner or form the requirements of this Ordinance that would otherwise be applicable to the reconstruction, relocation, modification or other major work including issuance of a permit in accordance with all of the applicable requirements, regulations, rules or specifications required by this Ordinance.
I. Protection of Highway Pavements.
1. Open-cutting of County Highway pavement for the placement, modification, enlargement or alteration of existing utilities or facilities is generally prohibited, with possible exceptions given for emergency cases or other applications where it is determined appropriate by the McHenry County Division of Transportation to permit open cutting. Requests for open cutting of a County Highway pavement will be reviewed on a case-by-case basis and then only when all other options for crossing the County Highway have been pursued and no feasible options remain. Written documentation indicating the impracticality of alternate means of crossing must be submitted along with any request for open-cutting.
2. Should existing utilities or facilities underneath existing County Highway pavements or shoulders require modification, enlargement, or alteration, the McHenry County Division of Transportation may prohibit such work and require, as a condition of the permit, the placement of a new utility or facility out from underneath the pavement, shoulder or curb lines in order to replace the existing utility or facility.
3. County Highway pavement shall not be broken, cracked or damaged in any manner or form. Equipment with grozzer pads, cleats, studs, or tracks shall not be operated or allowed on any highway pavement.
4. Any dirt, mud, or any other form of debris shall be immediately removed from the highway pavement.
5. In the event the owner of the utility or facility causes damage to the highway pavement and refuses to remedy or otherwise repair said damage in a timely manner, upon written notification by the County, the McHenry County Division of Transportation may, but has no duty to, order that the repair work be done in order to correct said damage. The owner of the utility or facility shall reimburse the County at a rate not to exceed one hundred and thirty percent (130%) of the costs incurred by the County and shall cease any and all other work authorized under the permit until such time as reimbursement has been made and alternate construction methods, acceptable to the McHenry County Division of Transportation, have been submitted and approved by the McHenry County Division of Transportation.
J. Restoration of Right-of-Way. Upon completion of the utility and facility work authorized by permit under this Ordinance, all disturbed areas of the right-of-way shall be restored to the original condition or better. Said restoration shall include any special landscaping or enhanced areas that existed in the right-of-way prior to the commencement of the permitted work. For projects in excess of five-hundred (500) feet in length, restoration work shall be completed as areas are backfilled and rough graded. The County shall bear no responsibility for costs associated with such restoration.
K. Interference with County Highway Maintenance or Construction Activities. Any maintenance operations or construction activities performed by the McHenry County Division of Transportation on County Highways shall take precedence over, and supersede all utility and facility construction, maintenance, placement, removal, relocation, modification, and use of the County Highway rights-of-way as authorized under this Ordinance.
L. Locating Utilities and Facilities.
1. The owner of any utility or facility permitted within the rights-of-way of a County Highway shall determine the location of its utility or facility as required by the County due to design, engineering, construction, or maintenance work to be performed on a County Highway by the County, its agents, employees, contractors, or permitted activities by others. Such locating may include exposing the utility or facility and/or providing distance and depth measurements.
2. The location of a utility or facility shall be performed within 48 hours (2 working days) and depth measurements or exposing of the utility or facility shall be performed within fifteen (15) days of any request.
M. Maintenance of Utilities and Facilities.
1. The owner of a utility or facility located within the rights-of-way of a County Highway shall be solely responsible for the use, operation, and maintenance of the utility or facility at no cost to the County.
2. In the event a utility or facility located within the rights-of-way of a County Highway becomes a hazard or potential hazard, the owner of the utility or facility shall immediately take action to remedy and alleviate the hazard or potential hazard. Said remedy shall not result in any cost to the County and shall not alter, diminish, lessen, change, or in any manner or form, limit the use of a right-of-way for roadway purposes.
N. Abandonment of Utilities and Facilities.
1. The owner of any utility or facility shall be responsible for any utilities or facilities remaining in the rights-of-way of a County Highway that have been abandoned or are no longer in use. Their responsibility shall include locating and removing, or reimbursing the County for the cost of removing the abandoned utility or facility that are in conflict with any County Highway improvement, construction, maintenance or other project performed by, or permitted by the County. At no time shall an abandoned utility or facility be allowed to remain under any proposed pavement, shoulders or curb lines of a County Highway. All abandoned utilities or facilities that are no longer used for service shall be removed from within the County Highway right-of-way unless written approval to allow the abandoned utilities/facilities to remain is obtained from the McHenry County Division of Transportation.
2. Capping, grouting or otherwise filling an abandoned utility of facility that will be under existing or new pavements, shoulders or curb lines is not an acceptable alternative.
O. Utilities and Facilities Attachment to Bridges and Structures.
1. It shall be the general policy of the County to grant approval for accommodation of utilities or facilities on bridges or grade separations only when engineering and economic studies substantiates that all other means of accommodating the utility are not practical. Other means shall include, but not be limited to, underground, under stream, independent poles, cable supports and tower supports, all of which are completely separate from the bridge.
The utility company or facility owner shall include detailed supporting data in their request that indicates the impracticality of alternate routing. The utility company or facility owner shall also conduct and provide to the County all necessary and appropriate structural engineering studies and investigations to determine the impact, including long-term replacement and life-cycle impacts to the structure. All such engineering and economic studies shall be conducted at no cost to the County.
2. Approval for utility or facility attachments to bridges and structures shall not relieve, excuse, diminish or negate, in any manner or form the utility company or facility owner’s obligations relating to relocation requirements in accordance with § 10.12.350C. of this Ordinance.
P. Change in Permittee Status.
1. The permittee shall promptly notify the McHenry County Division of Transportation of any actual or proposed change in status, including but not limited to bankruptcy, or transfer of, or acquisition by any other party of, control of the permittee. The word “control” as used herein is not limited to major stockholders, but also includes actual working control in whatever manner exercised. A presumption that a transfer of control has occurred shall arise upon the acquisition or accumulation by any person, group of persons, or groups of persons jointly acquiring five percent (5%) or more of the voting shares of the permittee. Said notification shall be in writing and sent to the McHenry County Division of Transportation with in thirty (30) days of the change in status.
2. Failure by the permittee to duly notify the County as required under this Ordinance shall result in the County Engineer having the authority, but not the duty to, revoke the utility or facility permit and required the removal of the utility or facility from the County Highway right-of-way.
(Ord. O-200811-82-068, passed 11-6-2008)