(dissenting) — In my opinion the principle enunciated in Kasper v. Edmonds, 69 Wn.2d 799, 420 P.2d 346 (1966) and Thymian v. Massart, 69 Wn.2d 806, 420 P.2d 351 (1966) compels reversal of the trial court and I respectfully dissent. The commencement of development on the Smith property had the effect of converting an inchoate right to a present right to the improvements enforceable by the City against Smith according to the terms of the PUD. See Esping v. Pesicka, 19 Wn. App. 646, 650, 577 P.2d 152 (1978). In my view the total cost of the improvements contemplated by the LID should be computed excluding the cost of improvements which Smith is obligated by the PUD to provide.
*99It is not necessary that the value of the improvements Smith is obliged to provide be considered "public funds" in order for the principle of the Kasper and Thymian cases to apply. The gist of those cases appears in Kasper at page 803.
It seems very unlikely that the legislature would put the power to prohibit protests completely in the unguided discretion of cities and towns. The right of protest is the property owners' limitation on a municipality's power of assessment; in the absence of a clear statement, should a municipality be allowed to control its own limitations?
(Footnote omitted.) The power of a municipality to include in the total cost computation the value of an improvement to which it is already entitled constitutes just as great a control of its own limitations as the power of a municipality to contribute its own funds to the total cost; the rights of the remaining property owners are manipulated by the municipality in either case. Both of these methods of computation are violative not only of the principle of the Thymian and Kasper cases, but also of the praecept fundamental to our system of government that ours is a government of laws, not of men. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803).
The wisdom of the LID, its usefulness, its efficiency and the advantages of proceeding by formation of the LID are not before us. The only question is, under the statute permitting the formation of an LID how is the "total cost" of the project determined?
The majority opinion speaks in terms of malpractice, abuse of discretion, arbitrariness and capriciousness. When an error of law has been made, there is no need for any such showing. Whether or not there was legerdemain in this case, unlimited discretion invites it.
Reconsideration denied October 17, 1978.
Review granted by Supreme Court February 16, 1979.