## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-3542

___________ Joe D. Whisenhunt; Margaret H. * Whisenhunt, *
* Appellants, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Southwestern Bell Telephone, doing * business as ATT Arkansas; * Southwestern Bell Telephone Company, * doing business as ATT Arkansas, *
* Appellees. *

___________ Submitted: April 16, 2009 Filed: July 17, 2009

___________ Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.

___________ WOLLMAN, Circuit Judge. Joe and Margaret Whisenhunt sought a declaratory judgment that Southwestern Bell Telephone (AT&T) must bear the cost of relocating utilities to accommodate the construction of certain streets within the c ity of Little Rock in connection with the1 The Honorable James M. Moody, United St ates District Judge for the Eastern District of Arkansas.
-2- Whisenhunts’ development of real prope rty. The Whisenhunts appeal from the district court’s 1 grant of summary judgment to AT&T. We affirm.

I.

The Whisenhunts sold approximately fift y acres of land to Fellowship Bible Church and entered into an agreement w ith the church to develop some eleven adjacent acres owned by the Whisenhunts. The properties are located east of Kirk Road and North of Wellington Hills Road . The development would likely be a combination of commercial space, such as retail space and restaurants, and multifamily residences. The agreement provide d that the Whisenhunts would complete site work at their sole cost and expense, including grading the land, improving and extending nearby roads, and installing and pr oviding water, sanitary sewer, electric, gas, and telephone services. Additionally , the Whisenhunts were responsible for securing the necessary permission and approval from the Little Rock Planning Commission (Commission).

Little Rock does not have a capital improvements budget and thus does not have money allocated for street improvement s. Instead, the city has a boundary street ordinance that requires anyone seeking to c onstruct “any curb, curb and gutter, section of street, [or] sidewalk” within the city to obtain a permit from the city. L.R.C. § 30- 281. Approval of the permit applica tion is contingent upon the developer’s constructing the requisite boundary street improvements. L.R.C. § 30-283. Thus, Little Rock has often relied upon developers to improve streets connected with their developments.-3- In 1957, Little Rock adopted a Master Street Plan (Plan) to provide a framework to accommodate future growth. The Plan map illustrated the location of major roads, both current and proposed. Pri or to the Whisenhunts’ development, the Plan called for Wellington Hills Road, currently a minor arterial road, to be extended north and for no improvements or extensi ons to Kirk Road, which was a smaller, collector street. The Whisenhunts’ application to the Commission proposed that Wellington Hills Road be extended to the west to meet Kirk Road and then Kirk Road, which travels north/south, would be enlargedto a minor arterial road and extended north. This adjustment would create the requisite north/south minor arterial street sought by the Plan, but would cause Kirk Ro ad to become the mi nor arterial road, rather than Wellington Hills Road.

The Commission reviewed the Whisenhunts’ application and considered the results of a traffic study indicating a moderate increase in traffic as a result of the development. One commissioner sought add itional time to review the traffic study, but a representative of the Whisenhunts indicated that additional time was not available because of the strict schedule imposed by the church. The representative assured the Commission that the Whisenhunts were committed to infrastructure improvements abutting their property to f acilitate traffic flows. The Commission approved the Whisenhunts’ application, fi nding that having Kirk Road as the minor arterial road would serve the public equally as well as the Plan’s proposed location. The application was then approved by Little Rock’s Board of Directors by the passage of Ordinance Numbers 19,599-61. Ordinances 19,560 and 19,561 specifically notified the Whisenhunts that “the cost of relocation of any utilities may be the responsibility of the developer at the time of such relocation.”

The Whisenhunts proceeded with their development plans. As they began construction on Kirk Road, they encounter ed AT&T’s utility lines. The Whisenhunts requested that AT&T relocate the utility lin es. AT&T responded with an “Agreement for Custom Work,” which required advance payment in the amount of $100,000 to-4- cover the costs of the relocation. The Whisenhunts refused to sign the agreement, believing that the relocation cost s were to be borne by AT&T.

Both the Whisenhunts and AT&T believed that Little Rock’s utility relocation policy required the other to bear the co sts of relocating the utility lines. AT&T provides communication services within LittleRock pursuant to a franchise agreement established in 1952. The franchise perm itted AT&T to place its facilities along, on, and over the city’s streets. With the passage of Ordinance Number 14,981 in 1985, Little Rock adopted a utility relocation polic y. The policy, whic h has been renewed annually, states that “the cost of reloca ting a public utility installation should not be borne by the City” when Li ttle Rock makes improvements or repairs to public facilities located on public rights-of-way. Thus, the public utility must relocate its facilities at its own expense “in connection with any pub lic works projects approved and/or performed by the City,” regardless of the source of funds, at the direction of “the Director of Public Works or other o fficials authorized by the City Manager.”

With both parties refusing to bear th e costs of the relocation, the Whisenhunts filed this action. An initial request fo r injunctive relief was withdrawn following an escrow agreement between the partie s whereby the Whisenhunts placed $100,000 in escrow and AT&T proceeded with the relocation work. In granting AT&T’s motion for summary judgment, the district court concluded that the Whisenhunts’ development was not a public works proj ect and that the Whisenhunts were the dominant moving party necessitating the relo cation of AT&T’s facilities. The court therefore concluded that the Whisenhunt s must bear the associated costs.

II.

We review a district court’s grant of summary judgment de novo and view the evidence in the light most favorable to the nonmovant. Nitro Distrib., Inc. v. Alticor, Inc. , 565 F.3d 417, 422 (8th Cir. 2009). Summary judgment is appropriate if the-5- evidence “show[s] that there is no genuine issu e as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The movant bears the burden of making this s howing, Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986), and the party opposing the motion “mus t set forth specific facts showing that there is a genuine issue for trial. ” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256 (1986).

“The general common-law rule is that a utility must bear its own relocation costs when relocation of equipment is re quired by public necessity.” Craighead Elec. Coop. Corp. v. Craighead County , 98 S.W.3d 414, 420 (Ark. 2003). This rule is embodied in the utility relocation policy in Little Rock, which requires the utility to bear the costs in connection with public wo rks projects when directed to do so by the appropriate city authority. The general ru le does not apply “whe n the actions of a private developer necessitate the reloca tion of the utility lines.” 99-181 Op. Ark. Att’y Gen. (1999) (citing Pac. Gas and Elec. Co. v. Dame Constr. Co. , 191 Cal. App. 3d 233 (Cal. Ct. App. 1987)).

The development undertaken by the Whis enhunts does not fall within the city’s relocation policy. The policy’s primary purpose is to ensure that the city is not required to shoulder relocation costs whenit engages in a public project; it is not designed to shield private developers from the obligation to pay associated development costs. State courts have c onsistently recognized this distinction when commenting on the purpose of the common law rule, which is “to insulate government and thereby, the taxpayers, fro m such expenses.” Home Builders Ass’n. v. St. Louis County Water Co. , 784 S.W.2d 287, 292 (Mo. Ct. App. 1989); see also Potomac Elec. Power Co. v. Classic Cmty Corp. , 856 A.2d 660, 668 (Md. Ct. App. 2004); Dame , 191 Cal. App. at 237. The development at issue here is a private commercial development involving no city actors.2 Of the above-listed cases, only City of Bridgeton required the utility to pay for its relocation. In that case, there was a legislative resolution passed by the mayor and city council declaring the road work a “ public governmental act.” 219 S.W.3d at 230.
-6- Further, the church and the Whisenhunts alone initiated the development. The Arkansas Supreme Court addressed a similar issue after the Little Rock Housing Authority undertook an urban renewal project to modernize a storm drainage system and a drainage ditch within the city. Ark. La. Gas Co. v. City of Little Rock , 506 S.W.2d 555, 556-57 (Ark. 1974). After determining that the Housing Authority was an entity independent of the city, the court ordered the Authority to pay for the costs of relocation because it was the “dominan t moving party” behi nd the improvements that necessitated alterati ons to the utilities. Id. at 558-59; accordPotomac Elec. Power Co. , 856 A.2d at 669 (“[W]here the relocation is triggered and made necessary by a private development, the common law rule does not apply and the developer must pay the cost of the relocation.”). There is no evidence that anyone but the Whisenhunts and the church were the driving force behind this development.

The Whisenhunts argue that because the improvements they made to Kirk Road were dictated by the city for the benefit of the public, AT&T should be required to pay for the relocation pursuant to city policy. Cities across the country commonly require developers to improve surrounding public areas in exchange for approval of development applications. The facts of this case are not unlike those in numerous other cases involving the relo cation of utilities. In Dame , approval of the developer’s property was conditioned on his agreement to “widen that portion of San Ramon Valley Boulevard immediately adjacent to th e site of the proposed development.” 191 Cal. App. at 235. In Potomac Electric Power , the developer was required to “widen Travilah Road and construct a shoulder ro ad, an adjacent drainage ditch, and sidewalks.” Similar road improvements we re required in Home Builders Association , 784 S.W.2d at 289; City of Bridget on v. Missouri-American Water Co. , 219 S.W.3d 226, (Mo. 2007); and SundquistHomes v. Snohomis, PUD , 965 P.2d 1148, 1149 (Wa. Ct. App. 1998). 2In contrast, the commission’s approval of the Whisenhunts’ proposed development and specifically, the construction to Kirk Road, does not constitute a legislative finding of government action.
-7- A city’s conditions to a permit application’s approval will not ordinarily convert an otherwise private development into a pub lic works project. That the public benefits from the construction does not result in such a conversion, nor does the fact that Little Rock has an established system that apparently relies upon such conditions. The evidence reveals that although a minor arterial road was pl anned for the future, there was no foreseeable, and certainly no imminent construction intended by the city. Cf. City of Bridgeton , 219 S.W.3d at 229 (noting that Bridgeton had intended to do necessary improvements on Taussig Road fo r some time, but was unable to fund the construction). It is also undisputed that the location of the minor arterial road was changed to accommodate the Whisenhunts’ development. The Whisenhunts “erroneously seek to equate governmental purpose with governmental action.” Home Builders Assoc. , 784 S.W.2d at 291. Though the public may benefit from the construction on Kirk Road and the Whisenhunts may in turn be effectuating a governmental purpose, their acceptance of conditions to accomplish their private development should not be equated with action by the city of Little Rock. The actions here were private; even “by complying with exactions, property owners such as Developers, are performing no governmental acts.” Id.

The judgment is affirmed.

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