LAYING OUT, WIDENING, ALTERING
AND VACATING
TOWNSHIP ROAD DISTRICT ROADS
PROCEDURES
When a City or Village needs to
lay out, alter, widen or vacate a municipal street or
road, it may do so by simply obtaining the necessary land
and recording a plat, or adopting an ordinance of vacation
and recording an appropriate plat. Not so with township
road districts that, with a couple of exceptions, must
follow a ponderous procedure that begins with a petition
and is followed by a hearing or hearings, and various
findings and orders, before any action can be taken. That
procedure is found in Division 3 of Article 6 of the Illinois
Highway Code (605 Illinois Compiled Statutes 5/6-301,
et seq.).
Before summarizing that petition/hearing procedure, we
will briefly mention the exceptions. One is, the incorporation
of roads and streets that have been plated and dedicated
to public use. (Section 6-325 of the Highway Code.) In
most, if not all, counties the incorporation of street
within newly platted subdivisions in unincorporated areas,
after approval of the plat by the county board, and acceptance
by the Highway Commissioner, is probably the primary means
by which they are added to road district systems. However,
the initial creation of those streets is dependent upon
approval by the County Board of a plat submitted by a
developer, and does not involve initiative on the part
of the highway commissioner. Therefore, if the commissioner
feels there is a need for a new or altered road, he must
follow the petition/hearing procedures. Moreover, even
where streets are brought into the road district=s system
after creation as part of a plat of subdivision, they
cannot be vacated by the highway commissioner unless the
Division 3, Article 6 procedures are followed. And, although
the highway commissioner can initiate street vacation
proceedings by filing a certificate with you as the district
clerk (Section 6-303 of the Highway Code.) even with that,
a hearing and other Division 3, Article 6 procedures must
then be followed.
The one other means for bringing a road within the district=s
system, available where it may have been laid out or dedicated
to public use, and used for fifteen or more years for
that purpose, but for some reason the description thereof
has not been properly placed of record. The highway commissioner
can cause such a road to be properly described and recorded,
and thereby bring it into the road district system.
However, aside from the foregoing exceptions, the following
petition/hearing procedures are the prescribed means for
laying out, widening, altering or vacating road district
roads. The process may be commenced by the filing with
the highway commissioner of a petition signed by 5% of
the legal voters, or 12 voters, whichever is less, residing
in the district. It can also be started upon the filing
of a certificate by the Illinois Department of Transportation
when the laying out, etc. is considered by IDOT as required
by construction of a state highway. Also, as mentioned,
vacation proceedings may be started by the filing of a
certificate by the highway commissioner. Although the
Highway Code requires that such a petition or certificate
set forth the description of the road to be layed out
or what parts are to be widened, altered or vacated, and
if a new road, the names of the owners of land over which
the road will pass, the statutes give no other guidance
as to specifically what the petition should say. It seems
obvious, however, that the petition should clearly and
precisely describe the relief requested, i.e. laying out,
widening, etc. (Sample forms of such petitions follow
at the end of this chapter.)
Once the Highway Commissioner receives such a petition,
or certificate from IDOT, he shall fix a time and place
where Ahe will examine the route of such . . . district
road and hear reasons for and against the laying out,
widening, altering or vacating.@ It should be noted that
the statute uses the word Ashall,@ which is generally
accepted by the courts to be mandatory. He must hold the
hearing.
It should be mentioned that this point, also, one other
section of Division 3 provides for a petition and requires
a hearing by the Highway Commissioner. That is Section
6-327 of the Highway Code which permits petitions for
the lying out of roads for private and public use, of
widths of 50 feet or less, from one dwelling to any public
road or from one public road to another, etc. Once having
received such a petition, the Highway Commissioner must
also proceed to hold a hearing under the same statutes
which govern petitions by 12 or more electors or certificates
filed by IDOT.
The Highway Commissioner must then give at least ten days=
written notice of the time and place of the hearing to
the County Superintendent of Highways and any municipality
which is affected by such action occurring within its
planning area (1 2 miles). That ten days= notice must
also be given by publication in at least one newspaper
of general circulation within the township or road district.
In the absence of a newspaper of general circulation,
then by posting in at least five of the most public places
in the district in the vicinity of the road to be layed
out, widened, etc. (A sample form of such notice follows
at the end of this chapter.)
At the hearing, which the Highway Commissioner may adjourn
from time to time, he shall ultimately decide and publicly
announce whether he will grant or refuse the relief asked
for in the petition or certification from the Department
of Transportation. He shall prepare a brief memorandum
of that decision and attach it to the petition. The memorandum
will be signed by the Highway Commissioner and filed within
five days in your office as the Road District Clerk. He
must also send a copy of that memorandum to the County
Superintendent of Highways and any affected municipality,
and where the action is initiated by the Department of
Transportation, a copy should be sent to the Department.
Things to be considered by the Highway Commissioner at
the hearing are whether or not the proposed action is
in the public and economic interest and whether any person
residing or owning land within two miles of any portion
of the road in question shall still have reasonable access
by way of motor vehicle or farm machinery to community
and trade centers. Before granting the relief asked for,
the Highway Commissioner must find that it is in the public
and economic interest and that no one will be deprived
of such reasonable access and that finding must be contained
in his Memorandum of Decision.
Other issues to be considered by the Highway Commissioner
at the hearing are those of damages and inducements. He
should determine whether anyone will suffer damage, either
by loss of land or loss of access through the proposed
laying out, altering, widening or vacating. If so that
issue must also either be resolved by agreement, or the
Highway Commissioner can commence condemnation proceedings
to acquire the necessary land. On the other hand, the
Highway Code also provides that any person or persons
interested in the establishment, widening, etc. of a road
is authorized to offer inducements to the Highway Commissioner
for the establishment, widening, etc. of such a road.
Such a person can do so by entering into a contract with
the Highway Commissioner, conditioned upon the establishment,
widening, etc.; to pay money or other valuable thing to
the district for the benefit of the road fund. Presumably
the land over which a proposed road is to run can be such
an inducement. Any such contract shall be deemed valid
and may be enforced by the Circuit Court of the County.
If after that preliminary hearing it is the decision of
the Highway Commissioner not to grant the relief asked
for in the petition, any three petitioners may appeal
from such decision to the County Superintendent of Highways
by joining in a notice of that appeal and filing it in
your office within ten days after the date of the decision
appealed from. It is then your duty to transmit the original
petition, together with the notice of appeal, to the County
Superintendent of Highways. The County Superintendent
may then hold his own hearing on the petition. However,
a preliminary order granting the petition is not appealable
to the County Superintendent. Only a final order granting
that relief is.
If after the preliminary hearing, the Commissioner decides
to grant the petition, then in lieu of a final hearing,
the Code provides that a final hearing may be held at
the time of the preliminary hearing, or an adjourned session
thereof, if all damages have been released, all surveys
(which are a requirement if the relief requested is to
be granted) are made and there are no objectors. However,
if those conditions do not exist, or if there are objectors,
a final hearing must held. That hearing shall also be
held subject to the same notice requirements as the preliminary
hearing, except that a written notice may also be mailed
or delivered to every person known to have been present
at the first hearing. At the final hearing, the Highway
Commissioner will determine the advisability of the proposed
laying out, widening, alteration or vacation and shall
make an order for that relief, or denying it, and within
five days file it in your office, as district clerk. And,
unlike the highway commissioner=s order after the preliminary
hearing, his final order does not have to be sent to the
County Superintendent of Highways. Also unlike the preliminary
order, the final order of the Highway Commissioner is
appealable to the County Superintendent whether or not
it grants the petition. For that appeal, the procedure
is precisely the same as that for appeal of the preliminary
order.
If the Highway Commissioner, or on appeal the County Superintendent,
decides against the advisability of the proposed laying
out, widening, alteration or vacation, his order will
have the effect of revoking any prior proceedings or agreements
relating to release of damages or inducements arising
out of the original petition and preliminary hearing.
On the other hand, in case the Commissioner or the county
superintendent affirms the prior proceedings, and grants
the relief prayed for, his order shall declare such road
to be layed out, widened, altered or vacated as a public
road, and that order shall contain a definite description
of the road. In any case, the final order, the petition,
and any releases or agreements in respect to damages or
inducements, shall be deposited in your office, and you
shall note upon the order the date of filing. It shall
also be your duty to record the order with any plat of
survey in a proper book kept for that purpose. (The statute
does not tell us what a proper book kept for that purpose
is, or where you can find one. Perhaps a simple scrap
book with plastic pages will suffice.)
Also, although the statutes make reference to the orders
of the Highway Commissioner and of the County Superintendent,
being final, the fact is that they are final only as to
them (apparently they can=t reconsider), because they
are all subject to Administrative Review by the Circuit
Court. That is why it is important to have a complete
record of all hearing proceedings made by a certified
court reporter. In Administrative Review, the court examines
only the transcript of those proceedings to determine
the correctness of the Highway Commissioner=s decisions.
It, along with all written exhibits, serves as his answer
to any complaint on Administrative review and is the only
evidence considered. Without it, and the carefully preserved
exhibits (your job), he might well lose.
Although there are a number of other miscellaneous provisions
in Division 3, the most important not yet discussed is
that which requires that whenever any district road is
layed out, widened, or altered in accordance with procedures
just described, the Highway Commissioner shall cause a
plat thereof to be recorded in the office of the County
Recorder of Deeds within six (6) months after the road
is laid out, etc. (That time requirement is not found
in this Highway Code, but in Section 9 of the Plat Act
765 ILCS 205/9. On the other hand, when a district road
is vacated it is only necessary that the Highway Commissioner
cause a legal description of the road or part thereof
vacated to be recorded in the office of the Recorder of
Deeds. It is then the job of the Recorder to mark the
previously recorded plat that dedicated the street in
such manner as to show the vacation. RECORDSIt is, of
course, important that the Highway Commissioner have a
complete and up to date record of all roads that make
up the district road system. While documentary evidence
of street dedications in the form of copies of plats and
grants are important, from a practical standpoint, an
accurate map, prepared on the basis of those records,
designating those roads is most useful.
Sources of information as to what roads make up the districts
system are:
A. The County Superintendent of Highways office; he very
likely will have his own map designating district roads;
B. The County Recorder=s office, which should have recorded
plats and grants;
C. Illinois Department of Transportation which can make
available MFT records;
D. Old (and not so old) township and road district records.
Also, when questions arise as to the status of a particular
road or bridge, it is often useful to consult, if possible,
prior attorneys for the township or road district. Most
attorneys are like pack rats and keep a file on everything
they have ever worked on. And, if you=re real lucky, one
of them may actually be able to find what you=re looking
for.
Finally, it is essential that you carefully preserve all
records, such as petitions, agreements, letters, memoranda
of Decisions and Final orders, resulting from petitions
and hearings relating to laying out, widening, altering
and vacating district roads, previously discussed, because,
as mentioned, they will, along with the transcript of
proceedings, make up the record on Administrative review
if the commissioner=s decision is challenged.
SAMPLE FORMS
For your reference, we have included a number of forms
that may be useful to any district involved in the process
of laying out Road District roads, etc. All of those
forms, with the exceptions of the notice of preliminary
hearing and memoranda of decisions, were copied from
forms prepared by P. F. Pettibone and Company. All of
the included forms, although most likely adequate as
they are, are offered as guides and can each be modified
and refined as needed for any particular situation.
It is strongly recommended, however, that they not be
used in any manner without the advice of your township
attorney, or other attorney licensed to practice law
in the State of Illinois and familiar with township
and road district matters.
Each form is preceded by the number of that section
of the AIllinois Highway Code@ that mandates its use.
For your further reference, the Illinois Highway Code
is Chapter 605 of the Illinois Compiled Statutes, and
that portion of the Highway Code relating specifically
to Township Road District is Article VI which can be
cited as 605 ILCS 5\6-101, et seq.
1. 5/6-303 Petition to Lay Out a new road
2. 5/6-303 Petition for Vacation of a road
3. 5/6-303 Petition for Alteration of road
4. 5/6-303 Notice of Preliminary Hearing
5. 5/6-305 Memorandum of Decision Granting Petition
6. 5/6-305 Memorandum of Decision Denying Petition
7. 5/6-305 Memorandum of Decision and Final Order
8. 5/6-307 Surveyor=s report
9. 5/6-311 Notice of Final Hearing
10. 5/6-311 Final Order for laying out, widening, altering
or vacating
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