Whisenhunt v. Southwestern Bell Telephone

• Decision Date: 17 July 2009
• Docket Number: No. 08-3542.,08-3542.
• Citation: 573 F.3d 565
• Parties: Joe D. WHISENHUNT; Margaret H. Whisenhunt, Appellants, v. SOUTHWESTERN BELL TELEPHONE, doing business as ATT Arkansas; Southwestern Bell Telephone Company, doing business as ATT Arkansas, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

573 F.3d 565

Joe D. WHISENHUNT; Margaret H. Whisenhunt, Appellants, v. SOUTHWESTERN BELL TELEPHONE, doing business as ATT Arkansas; Southwestern Bell Telephone Company, doing business as ATT Arkansas, Appellees.

No. 08-3542.

United States Court of Appeals, Eighth Circuit.

Submitted: April 16, 2009.

Filed: July 17, 2009.

Richard C. Downing, Little Rock, AR, for appellant.

Eric Glen Hughes, argued, Harry Edward Skinner, on the brief, Arkadelphia, AR, for appellee.

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 city of Little Rock in connection with the 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 multi-family 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.

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 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 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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...