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I wrote this article before the results of the vote on Measure 49 were known.

Attempts at prescience are risky; however, it’s helpful to concentrate on the themes used by the two campaigns to reach voters and convert them to their causes, because those themes draw upon deeply seated beliefs and preferences among Oregonians.

They tell us much about ourselves.

Those favoring Measure 49 saw the polls that showed a certain “buyer’s remorse” over Measure 37, which was passed in 2004 and which Measure 49 substantially revises. A principal theme for Measure 49 proponents was that Measure 37 was sold to Oregon voters on a theme of “fairness,” using cases like that of Dorothy English, a nonagenarian who stated that she wanted to pass on her land to her children and others but was unable to do so due to land-use regulations.

The 2004 campaign on Measure 37 also stressed ways for those who had sufficient land to divide for residential use to do so. This was an especially potent theme in rural areas of the state, where such land was available. And it appealed to the free market views of those who believe such opportunities should be available.

The consequences of Measure 37 were somewhat different from these expectations: The measure was certainly used for claims requesting residential uses, even if those claims might never eventually be realized. However, the proliferation of claims for large residential subdivisions, rock quarries, shopping malls and billboards provoked a reaction that proponents of Measure 49 exploited.

Another familiar theme used by Measure 49 proponents was the loss of natural resources to development. This theme proved effective in combating frontal assaults on the state’s land-use program through the initiative process in the 1970s and 1980s. Proponents of Measure 37 in 2004 were sufficiently clever not to frame their attacks directly on that system; instead, they spoke in broader terms of “fairness” and “just compensation.” By reframing their response to those themes in pointing to the results of Measure 37 in the loss of resource lands, Measure 49 proponents had an effective tool to advance their cause.

Opponents of Measure 49 weren’t bereft of arguments, however. These opponents effectively changed the focus of Measure 37 in 2004 from results to ideology, tapping into Oregon’s libertarian preferences, previously manifested in the effective decriminalization of marijuana and the passage of death with dignity laws. By stressing “fairness” and “just compensation” as well as the relatively innocuous addition of a rural home or two, Measure 37 was passed. The loss of this “freedom” to use property as one sees fit is an argument that resonates among many Oregonians.

Another strong argument employed by Measure 49 opponents related to the natural suspicion of lengthy and complex legislation. Opponents cleverly used a “wolf in sheep’s clothing” theme, ascribing dark motives to Measure 49’s authors.

By going on the offensive, Measure 49 opponents kept their base supporters with them, stressing the threat to the perceived benefits from Measure 37. Measure 49 proponents failed to attack that base of support by stressing that, despite the number of approved Measure 37 claims on paper, the lack of transferability of such claims, the fact that transferees of property even where construction is complete get, at best, a nonconforming use that generally cannot be changed without local permit approval, and a lack of financing for construction on approved claims, all will militate toward relegating most claims to paper approvals without an “on the ground” effect.

It’s likely the arguments above, or their variations and combinations, were the most effective determinants of the Measure 49 vote.

Edward J. Sullivan has specialized in land-use law for more than 35 years. He is an owner in the Portland office of Garvey Schubert Barer and a former chairman of the State and Local Government Law Section of the American Bar Association. Contact him at [email protected] or 503-228-3939