Dispute over Kanis Road designation heads for court.

A DEVELOPER DISPUTE over roadway improvements along a 1,650-foot section of Kanis Road in west Little Rock has hit the courthouse.

Commercial developer Joe Whisenhunt sued the city of Little Rock for not requiring a neighboring property owner to help widen the two-lane road to four lanes.

The tiff amounts to a legal tug-of-war over whether more traffic will flow toward Whisenhunt's Dairyland Shopping Center at the southwest corner of Chenal Parkway and Kanis Road.

On the other end of the rope is a future realignment of Kanis Road, planned by the city for more than a decade, that someday will divert traffic to a new Chenal Parkway intersection 828 feet east of the current junction.

Caught in the middle of Whisenhunt and the city is Kanis Road LLC, which controls land adjoining the south side of the 25-acre Dairyland development.

Whisenhunt's lawsuit forced the limited liability company, named as a co-defendant, to put its plans to develop a Splash Carwash at 15823 Kanis Road on hold.

The suit effectively stopped the city from issuing a building permit for the project. Without the building permit, Kanis Road LLC can't move forward with construction.

Whisenhunt has asked the court to rule on whether the city's master street plan requires the carwash development to accommodate an additional lane of traffic.

"It's really very simple, but it's all very statutorial," said Doug Robertson, general counsel for Whisenhunt Investments.

City officials in October approved plans for the carwash that didn't include building new roadway to support expanding Kanis to four lanes.

Whisenhunt claims the master street plan designates all of Kanis Road a "minor arterial," requiring developers to help convert the two-lane road to four lanes through right-of-way donations and new roadway construction.

City officials, meanwhile, claim the section of Kanis in question, which extends south and east from Chenal Parkway to property owned by the city, is designated as a "collector" street and its current two-lane configuration.

The strip of city-owned land was purchased with the intent of building a four-lane road north to Chenal Parkway, where it would create a four-way intersection with Wellington Hills Road.

In essence, this new section would realign Kanis Road. The portion of Kanis now embroiled in dispute--referred to by some as Old Kanis Road--was to remain two lanes, according to city officials.

"That was the plan," said Jim Lawson, director of planning and development for the city. "We have documents after documents to show that."

The disagreement highlights a bureaucratic conundrum: When is a stretch of road that functions as a minor arterial street but isn't built to minor arterial standards not a minor arterial street?

When the city's codified designation says so.

Bill Mann III, chief deputy city attorney, said the city consistently has required developers along the disputed portion of Kanis to make improvements up to collector standards, not minor arterial.

"The original master street plan maps shows that that small portion of Kanis is not a minor arterial," Mann said. "(Whisenhunt's) copy of the map might leave you with a question, but there is no question with the original. We will bring the original with us to court, so there shouldn't be any confusion."

Not So Friendly

Whisenhunt, who has no objections to the Splash Carwash, portrays the litigation as friendly. The response of Gene Cauley, a Little Rock lawyer who leads Kanis Road LLC, doesn't agree with that characterization.

Cauley countersued Whisenhunt asking for compensatory damages of $1,000 per day, punitive damages of $1.5 million, dismissal of the case and dissolution of the temporary restraining order that prevents him from getting his building permit.

He also asked the court to require Whisenhunt to post a bond equal to the amount of estimated losses in the event the TRO stands.

"What this lawsuit is about is legalized extortion, and it constitutes a textbook example of abuse of process," Cauley's counterclaim states.

He alleges that Whisenhunt filed his lawsuit in an effort to force Kanis Road LLC. to spend money to widen Kanis rather than incur the costs of litigation and the lost revenue from delaying the opening of the carwash.

Although the city didn't require it, Whisenhunt opted to expand a portion of Kanis Road at his expense to minor arterial standards. City officials gave its blessings to Whisenhunt's plans, which also included installing a traffic signal at the intersection.

Whisenhunt invested $130,000 to widen Kanis along part of the eastern boundary of his property. The $95,000 spent to install the traffic signal was split with Highland Valley United Methodist Church, which sits on the north side of Chenal Parkway at the intersection.

Pastor Kurt Boggan of Highland Valley said neighborhood safety was the prime motivation in the church's financial contribution to the traffic signal.

"It was a low priority project for the city," Boggan said. "We had been negotiating to get the light for five years. Baker Elementary School is just down the road on Kanis, and we didn't want to see anyone injured at the intersection."

The traffic signal's effect on curtailing accidents is undeniable. Since it was installed in April, there hasn't been a single auto accident reported within a half block of the intersection.

Prior to that, there were three during the first quarter of the year, 16 during 2002, eight during 2001, 12 during 2000 and 15 during 1999.

"You certainly don't want your development to become known as a traffic hazard," said Doug Robertson, who is also Whisenhunt's son-in-law. "We did it because there was a need. We needed it, and the public needed it. Our needs were concurrent with the public's."

Whisenhunt has used the improvements as ammunition in his lawsuit: Why would the city allow us to build to higher standards if it ran contrary to the master street plan?

Getting a free improved intersection seems to be the city's prime motivation.

"Whisenhunt elected for his own economic reasons to builed out the property to a higher standard [to facilitate a traffic signal]," Cauley's counterclaim states. "He is using illegitimate litigation as a way to force others to involuntarily subsidize his voluntary expenditures."

In exchange for being allowed to move forward with his project, Cauley offered to put $20,000 in an escrow account to cover the cost of expanding Kanis Road should Whisenhunt win his lawsuit.

After Cauley filed his counterclaim, Whisenhunt made a counter offer. He would release Cauley's project from the lawsuit if Cauley would expand the road, and Whisenhunt would put up a bond equal to the cost of Cauley building his portion of Kanis to minor arterial standards. If Whisenhunt proved unsuccessful in his litigation, he would forfeit the money to Cauley.

"We're not interested in attacking their development," Doug Robertson said.

Cauley couldn't be reached for comment.

The lawsuit has been delayed because Pulaski Circuit Judge Barry Sims recused from the case because he went to school with Robertson and Joe Whisenhunt Jr.

The case was reassigned to Judge Willard Proctor. A hearing originally was set for Nov. 21, but that was postponed after a jury trial ran longer than expected. A new hearing date has yet to be set on whether to extend or rescind the temporary restraining order.

Whisenhunt's suit also asks the court to prevent the city from issuing any building permits that don't recognize Kanis Road as a minor arterial, along with the attendant roadway requirements.

Whisenhunt's main issue before the court is to declare all of Kanis Road, as it exists now, a minor arterial.

"The master street plan doesn't show that," the city's Jim Lawson said. "They're wrong, and I'll testify to that in court whenever we ever get to that point."