Esping v. Pesicka , 21 Wash. App. 96 ( 1978 )

James, J. —

Our opinion filed in this cause on April 3, 1978, Esping v. Pesicka, 19 Wn. App. 646, 577 P.2d 152, affirmed the trial court in rejecting a challenge to a local improvement district established by the City of Tukwila. We granted appellants' petition for rehearing because of an error in the opinion's recitation of the facts.

We stated at page 648, "Neither Smith nor his predecessor have developed the property." In fact, Tukwila granted Smith building permits in 1975 and he has constructed apartment buildings upon property located within the proposed LID boundaries. Smith has not been required to provide the utilities and improvements in the streets adjoining his property as contemplated by the "Property Use and Development Agreement" pending the outcome of this litigation. The City will, however, require Smith to make the improvements if formation of the LID is enjoined.

As stated in our earlier opinion, appellants contend that Smith's obligation to pay for improvements to the streets which abut his property is an asset of ascertainable cash value. Appellants argue that by including the amount of Smith's assessment for the same improvements, the City has in effect made a cash contribution to the total cost of the LID. We do not agree.

The companion cases of 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), upon which appellants rely, hold that a municipality may not dilute LID protestors' right of protest by contributing "public funds," Kasper, at 802, to the "total cost of the improvement" as contemplated by RCW 35.43.180.

After numerous and extensive hearings, Tukwila's city council determined that the City's interests would best be served by the formation of a comprehensive local improvement district. The improvements proposed include but are more extensive than those specified in the agreement with Smith's predecessor. The "total cost" of the improvements will be paid only by assessments against properties benefited by the improvements and owned by persons entitled to file formal protests. No "public funds" derived from other sources will be contributed to the project.

We are satisfied that Tukwila has not been guilty of the malpractice condemned in Kasper and Thymian. Its decision to relinquish its contractual right to require Smith to improve the streets abutting his property in favor of what it conceived to be a better and more comprehensive city development plan reflects an exercise of administrative discretion. In so deciding, Tukwila has not made the right to protest "almost illusory" by contributing public funds to the project. Kasper, at 802. As stated in Thymian, at 807, the "total cost of the improvement" as those words are used in RCW 35.43.180 "refers to the assessed cost as borne by the property owners whose property is benefited". (Italics ours.) No public funds have been used by Tukwila to "destroy the possibility of protest." Kasper, at 802.

Tukwila's decision cannot be judicially condemned as arbitrary or capricious. We find no abuse of discretion. We, therefore, adhere to our April 3, 1978, opinion.

Andersen, A.C.J., concurs.