t Attorneys say the city doesn’t have the authority to put it to a vote

Before he hit the streets to gather signatures from people in favor of banning artificial turf on Bainbridge Island, Chris Van Dyk said he reviewed the law on the issue.

What he saw in January, he said, was pretty straightforward; he needed 966 signatures, or 10 percent of the votes cast in the 2007 general election to get his plan – which in addition to banning artificial turf on the island would impose a half-cent sales tax to pay for natural grass fields – on the November ballot. 

Several months and more than 1,100 signatures later, Van Dyk presented his proposed initiative the city.

The plan was to have it forwarded to the county auditor for eventual placement on the November ballot.

There’s just one problem: the city may not have the legal authority to do so.

“It is my recommendation that the City Council and the city not take any steps to place the offered initiative on the ballot for the next general election,” said City Attorney Paul McMurray in a memo to councilors.

The reason, McMurray said, is that although voter initiative and referendum powers are available to voters in Washington cities, they aren’t automatic; they must be formally adopted first, something that hasn’t happened on Bainbridge.

In fact, according to legal consultants at the nonprofit Municipal Research and Services Center of Washington, less than 50 of the 281 cities incorporated in the state have formally adopted the powers that enable voters to place legislation on the ballot.

McMurray said that unless that were to change – something that can only happen through a strictly prescribed process –  no local initiative, Van Dyk’s included, can be placed on the ballot.

McMurray’s opinion was backed by several other attorneys, including Jay Derr and Kitteridge Oldham, of Seattle firm GordonDerr, and Pat Mason, a senior legal consultant with MRSC.

“In my opinion, this is not a valid initiative petition and it may not be submitted to the voters in its present format at the November election,” Mason wrote in an email to McMurray.

According to state law, establishing the city’s powers of initiative and referendum could happen either by the submission of a petition with the number of signatures equal to 50 percent of the number of voters in the last general election, or by resolution of the City Council.

Regarding Van Dyk’s plan, one alternative to the initiative process would be for the council to submit a version of the proposed legislation to voters for an advisory vote, which wouldn’t be binding.

Another would be for councilors to leave voters out of the equation and vote themselves on the proposed legislation.

One way or another, Van Dyk thinks voters should have the final say. 

“Our position is that just because the council hasn’t implemented the state law doesn’t mean we’re not entitled to the initiative process,” he said. “We acted in good faith – the city has all the power in the world to put this on the ballot.”

Van Dyk’s push to ban artificial turf was launched in January, when he created the website plasticfieldsfornever.org. He and others are worried about the potential health and environmental impacts of the materials slated to be used at playing fields on the island.

Proponents of artificial turf fields counter that the materials are safe and more durable than natural surfaces.

As for the petition, Van Dyk said the initiative powers of voters are contained in the state constitution, which supersedes local law. He said the council should refer the proposed ordinance as proposed to voters. Improvements to the language of the plan would be fine, he said, as long as its “general meaning and intent” are preserved.

Derr and Oldham argue that the state constitution deals with statewide initiatives – those that would enact state laws – but not local initiatives that would enact city ordinances.

“While we cannot absolutely rule out the possibility that at some point in the future some court might conclude that the constitution automatically grants initiative power to enact ordinances to voters in all Washington cities, we note that… we have not located a single case reaching that holding – indeed we have not even located a case where the issue was raised.”

Pam James, of MRSC, concurred.

“It’s a first for me to hear about something like this,” she said Monday. “It’s confusing in a way because of the state powers that exist – but that’s a different mechanism.”

There are other voter-initiated processes that don’t apply to the same rules, such as a citizen effort currently underway to change the island’s form of government; a group of islanders has gathered nearly a 1,000 signatures to put the issue to a vote sometime next year using a mechanism that is subject to different requirements than standard initiatives.

Amid the ongoing and often complex debate between supporters and opponents of artificial turf, Van Dyk said this latest round of legal confusion caught him by surprise.

“Frankly, I didn’t see any problems,” he said. “We’re sort of plowing new ground.”