United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3542

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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. *

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Submitted: April 16, 2009

Filed: July 17, 2009

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Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.

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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 city of Little Rock in connection with the
1

The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas.

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Whisenhunts’ development of real property. The Whisenhunts appeal from the

district court’s1

 grant of summary judgment to AT&T. We affirm.

I.

The Whisenhunts sold approximately fifty acres of land to Fellowship Bible

Church and entered into an agreement with 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 provided 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 providing 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 improvements. Instead, the city has a boundary street

ordinance that requires anyone seeking to construct “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 application 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. 
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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. Prior 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 extensions 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 enlarged to 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 Road to become the minor 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 additional 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 facilitate traffic flows. The Commission

approved the Whisenhunts’ application, finding 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 encountered AT&T’s utility lines. The Whisenhunts

requested that AT&T relocate the utility lines. AT&T responded with an “Agreement

for Custom Work,” which required advance payment in the amount of $100,000 to
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cover the costs of the relocation. The Whisenhunts refused to sign the agreement,

believing that the relocation costs 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 costs of relocating the utility lines. AT&T

provides communication services within Little Rock pursuant to a franchise agreement

established in 1952. The franchise permitted 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 policy. The policy, which has been renewed

annually, states that “the cost of relocating a public utility installation should not be

borne by the City” when Little 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 public 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 officials authorized by the City Manager.” 

 With both parties refusing to bear the costs of the relocation, the Whisenhunts

filed this action. An initial request for injunctive relief was withdrawn following an

escrow agreement between the parties 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 project and that the Whisenhunts were the

dominant moving party necessitating the relocation of AT&T’s facilities. The court

therefore concluded that the Whisenhunts 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
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evidence “show[s] that there is no genuine issue 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 showing, Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986), and the party opposing the motion “must 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 required 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 works projects when directed to do so by the

appropriate city authority. The general rule does not apply “when the actions of a

private developer necessitate the relocation 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 Whisenhunts 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 when it engages in a public project; it is not

designed to shield private developers from the obligation to pay associated

development costs. State courts have consistently recognized this distinction when

commenting on the purpose of the common law rule, which is “to insulate government

and thereby, the taxpayers, from 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.

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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 “dominant moving party” behind the improvements

that necessitated alterations to the utilities. Id. at 558-59; accord Potomac 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 relocation 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 the 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 road, an adjacent drainage ditch, and

sidewalks.” Similar road improvements were required in Home Builders Association,

784 S.W.2d at 289; City of Bridgeton v. Missouri-American Water Co., 219 S.W.3d

226, (Mo. 2007); and Sundquist Homes v. Snohomis, PUD, 965 P.2d 1148, 1149 (Wa.

Ct. App. 1998).2
In 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.

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A city’s conditions to a permit application’s approval will not ordinarily convert

an otherwise private development into a public 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 planned 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 for 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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