by Joel Garreau
Paradoxically, in the middle of all this the number of jobs in Phoenix continued to grow. So did the number of immigrants. Phoenix even became recognized as a national model for ways to bring life and civilization and esthetic appeal to downtown and Edge Cities.
How could this be?
At least partially, the answer was shadow governments. While highly visible institutions took a beating, thousands of low-profile, small—and sometimes not so small—regimes filled the vacuum, taking on power and the responsibility for running daily life. To the extent that means for getting things done became highly dispersed, localized, and privatized, they were shielded from the damage to public institutions.
Edge Cities nationwide display an ingenious array of such shadow governments. These shadow governments are usually organized like corporations and given names that do not begin to hint at their power. But they can be broadly grouped into three categories:
• Shadow governments that are privately owned and operated, such as homeowners’ associations that can rigidly control immense residential areas. Typical of those in the Phoenix area are the Arrowhead Ranch Homeowners Association in Glendale and Leisure World in Mesa.
• Shadow governments that are quasi-public institutions but have accrued power and influence far beyond their original charter. Typical of those in the Phoenix area is the Salt River Project.
• Shadow governments that occupy a murky area between these private and public sectors. They are often referred to as public-private partnerships. Typical is the Downtown Management Partnership of the Phoenix Community Alliance.
What makes these outfits like governments, scholars say, is the extent to which they have the following three attributes:
• They can assess mandatory fees to support themselves: the power to tax.
• They can create rules and regulations: the power to legislate.
• They have the power to coerce, to force people to change their behavior: the police power.
All governments have these powers. What sets shadow governments apart is that they have three additional attributes:
• The leaders of shadow governments are rarely if ever directly accountable to all the people in a general election.
• When and if these leaders are picked in a private election, the vote is rarely counted in the manner of Jeffersonian democracy, with each citizen having a voice. Instead, it is usually one dollar, one vote.
• These leaders are frequently not subject to the constraints on power that the Constitution imposes on conventional governments.
Take Don Smith, for example. In the press, he has been labeled The Enforcer. He rather fancies that designation.
Smith was an FBI agent for twenty-five years. But now he is the “field supervisor” of Arrowhead Ranch, not far from Metro Center, the emerging Edge City in northwest Phoenix. Arrowhead Ranch is a subdivision of almost two thousand homes run by a homeowners’ association. That shadow government reaches farther into the lives of its more than three thousand members than any ordinary government has ever been allowed to in America.
The Arrowhead Ranch homeowners’ association, for example, passed a law that dictates what residents in its subdivision may or may not park in their own driveway—on their own land. This shadow government does not like the looks of campers, commercial vehicles, motorboats, motorcycles, buses, travel trailers, and motor homes. In fact, it will not put up with an unstacked pile of firewood. And what the Arrowhead Ranch homeowners’ association says, goes.
Recently, Smith relates, a homeowner at Arrowhead Ranch parked a Winnebago-like motor home on his private property, beside his house. The shadow government sicced Smith on the perpetrator, and Smith sent the homeowner what he calls a “gig letter,” pointing out the offense. When the homeowner did not shape up, the association responded with lawyers. They filed suit in Maricopa County Superior Court—“the same court where you try a homicide case,” Smith observes pointedly—demanding a permanent injunction against the offender. When the homeowner resisted, the judge not only backed the association, but demanded that the Winnebago owner pay almost $2000 in the association’s attorneys fees, in addition to his own. There is no reason to think the homeowner has not learned his lesson. But if he ever parks that Winnebago next to his house again, it could mean jail. Contempt of court. “You bought yourself a definitive ruling,” the judge told him from the bench. In other words, this Maricopa County court may plop a citizen in a public jail if he fails to obey a privately owned and operated shadow government.
Another homeowners’ association Smith works for is that of Pinnacle Peak Estates in swanky Scottsdale, the Edge City to the northeast. There, the average home is worth perhaps $400,000. Yet the shadow government has decided it will not permit anyone to grow a lawn on his own property. In fact, it has “plant police,” who control what homeowners are allowed to grow in their ground, because this shadow government has decided that the only horticulture it chooses to allow is that native to the desert. One man with the silly idea that his home was his castle planted a hedgerow of eucalyptus trees in his back yard without the approval of the architectural committee. It ended up costing him over $20,000, Smith estimates. That would be the cost of the trees, plus the lawyers he had to hire to defend himself against the shadow government, plus—when he lost—the court costs of the shadow government’s lawyers. Then, of course, he incurred the cost of cutting down the trees.
These are hardly isolated cases. “If you want a new home, it is increasingly difficult to get one that doesn’t come with a homeowners’ association,” said Douglas Kleine, a consultant and former research director for the Community Associations Institute (CAI), the national trade group for private-enterprise shadow governments that includes condominium, co-op, and town-house associations as well as planned urban developments. The CAI estimates there are at least 130,000 of these shadow governments nationwide.
The powers of the shadow governments derive from the idea that subjecting oneself to them is a voluntary act. When a family chooses to buy a particular home, it is legally presumed that they fully understand what such an association really means to their lives.
However, once that house is chosen, membership in the community association is not voluntary. Neither is compliance with the association’s rules. Embedded in the deed are “covenants, conditions, and restrictions”—invariably pronounced cee-cee-en-ares—that make obedience mandatory. And the enforcement powers are awesome. “Your peers, the community association, have the power to take your house away from you,” Kleine explains. “They also have the power to go into small claims court and have the sheriff go after the TV set. And they have the power, usually, to suspend certain privileges—or rights, depending on your definition—including the right to vote. It’s like the old poll tax. If you didn’t pay your tax, you can’t vote.”
They can regulate how many pets you may have, what size those pets can be, and where you may walk them. They can regulate whether or not you may live with your children. Charles Keating buried C C & Rs in the deeds of one of his most ambitious Phoenix developments, Estrella, that banned “pornographic” films, books, magazines, and devices from a homeowner’s bedroom.
In Mesa, where another Edge City is growing southeast of central Phoenix, John Lafferty once found himself facing two problems. Lafferty is the administrator of the community association of Leisure World, a walled development with almost five thousand residents. He is a paid professional who reports to a board of directors elected by homeowners grouped in districts; he is in effect the city manager of a shadow government with a budget of over $5 million.
The first problem was an illegal immigrant—a physician, forty-two. The doctor had had a nervous breakdown and become incapable of working or taking care of himself, so his parents had brought him into their home.
The problem was that Leisure World has a law that no one may live there who is under forty-five. If the parents wished to continue to care for their broken son, they had
to move. They were very understanding, Lafferty said. They were going quietly. But they were going. They were leaving their home. They understood the association would enforce its rules if it had to. There was no doubt about that.
The second problem Lafferty faced was the newspaper. It seems that the developer of Leisure World, Western Savings and Loan, had long published one that was circulated for free, available for the taking from racks placed in the common areas. Western also made the paper widely available outside the walls, since a publication trumpeting all of Leisure World’s activities was thought to boost real estate sales. Every supermarket and drugstore within sight of the Superstition Mountains carried copies, and Leisure World News became quite an institution, with a full-time editor and a circulation of fifteen thousand. Because it delivered an affluent market, it attracted a healthy ad base, which swelled the size of the paper to as many as ninety-six pages.
Then Western was taken over by the wrathful federales of the Resolution Trust Corporation, who could not imagine why they should be in the newspaper business. So they stopped paying for the publication. This created a void for the management of Leisure World, which had always used the publication as its house organ. It also created a void for Doris Mathews, the paper’s editor, who was going to be without a job. Mathews, like a good Arizona capitalist, decided to take over the paper and keep it going as an independent voice.
But here was the hitch: the First Amendment does not force shadow governments to allow freedom of the press.
Less than eager to encourage a Leisure World newspaper over which he had no control, Lafferty prohibited the distribution of Mathews’ paper from its traditional racks in the common areas. Mathews retaliated by getting friends to distribute the paper. But Lafferty was holding the aces.
Lafferty’s shadow government is a private corporation. The common grounds of Leisure World are private property that the shadow government controls. Therefore, Lafferty can start up his own newspaper and, with rare effectiveness, suppress competing voices. A conventional government would never be allowed to Force all of a newspaper’s vending machines off the public sidewalks. But Lafferty legally may pull the distribution boxes of any newspaper he doesn’t like—even the Arizona Republic, the state’s Foremost daily—if he chooses. If his action squelches Mathews’ paper—if she finds it prohibitively expensive to distribute her newspaper by mail, or if she loses advertisers because of her distribution problems and is run out of business—those are the breaks.
Mathews—who describes herself, accurately, as looking like Aunt Bee in The Andy Griffith Show—acknowledges Lafferty is completely within his rights. The Constitution says only that regular, aboveground governments “shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.”
But that is the key distinction about a shadow government. It is not a regular government, even if the association does hold elections For its board of directors. Private corporations have broad powers over private property.
“They are setting up internal courts,” Kleine points out. “Due process may be desirable, but it is not required. The Fourteenth Amendment does not apply.” The Fourteenth Amendment guarantees equal protection for all. “The application of the Fourteenth Amendment would cause all kinds of things. It would subject the board of directors to the Voting Rights Act. If you’re elected by district, and you wanted to redraw those lines, you’d have to go to the Justice Department. You couldn’t have one dollar, one vote, or one house, one vote.
“The First Amendment? The association newspaper is a house organ. It’s just like a company newsletter. It’s there for us to communicate with you, not for you to communicate with each other.” That is why the Leisure World paper—on purpose—never had a letters-to-the-editor page.
Defenders point out that homeowners readily obey and encourage shadow governments. And indeed, such units are very successful at what they do. They control nuisances and unpleasantness and keep the community swimming pool clean. Thus, property values rise. These disciples further observe that if the larger society finds the actions of these private governments objectionable, it is not without recourse. The power of homeowners’ associations is based on the covenants written into the deeds. In decades past, offensive covenants—such as those prohibiting house sales to blacks and Jews—have been thrown out when challenged in court.
These supporters also point out that shadow governments devise new solutions to the new problems that Edge City faces every day. If conventional governments had been doing such a great job, people would not have felt obliged to invent new forms, taking governance into their own hands, this argument goes. Perhaps. But such opportunities as arise, these shadow governments certainly seize. Take the quasi-public shadow government called the Salt River Project.
The land around Phoenix is martini-dry. The only reason a city exists there at all is that as long ago as the time of Christ, humans of the Hohokam tribe recognized that by the standards of the Sonoran desert, the Valley of the Sun can be made water rich. These native Americans built a 250-mile canal system that permitted an advanced civilization to support twenty thousand people. For reasons that remain a mystery, the Hohokam disappeared from the valley just before Columbus sailed. A century and a half later, the Spanish showed up and gave the name Rio Salado—Salt River—to the broad gravel bed from which the canals radiated. A miner, scout, and Confederate cavalry veteran named Jack Swilling reintroduced canal building to the area in the late 1800s. Then, in 1902, President Teddy Roosevelt championed the National Reclamation Act, which provided government loans to “reclaim” Western lands with irrigation projects. Metropolitan Phoenix rose around the bed of the Salt River because, in 1903, the shadow government called the Salt River Project was born.
Jack Pfister (pronounced Feester) is the general manager of the Salt River Project. His chaste reaction to my initial questions was “I would not describe the Salt River Project as a form of regional government—because of our limited functions, basically only delivering water, with the power business being supplementary to that.”
Nonetheless, this shadow government has vastly more influence over the lives of the people of Phoenix than do most conventional governments.
In the dry Southwest, water is the linchpin of the universe. With water you can create charming cities, fields of agricultural plenty, thriving industry, or wild rivers that charge the spirit. But there’s not enough water to have all four. Who gets what is determined in a highly expensive, complex, and politicized fashion. And in central Arizona, that means the Salt River Project. An entity like the Salt River Project, which determines the price and availability of electricity, has the power of life and death. In Arizona in the summer, people without air conditioning die, just as surely as do people in Montana without winter heat. When the Salt River Project decides to encourage water conservation—or, conversely, subsidizes water use by making it artificially cheap—or decides to share the cost of a nuclear reactor forty miles upwind of Phoenix or builds a coal-fired generator whose pollution is accused of obscuring the Grand Canyon, it exercises more control over the Arizona environment than virtually any other player.
With powers like that, it seems but the tiniest and most inconsequential leap for a quasi-public shadow government like the Salt River Project to get involved with such social services as day care. Or with transforming central Arizona into a boating and fishing center by offering recreation on its reservoirs. Or with determining the quality of Edge City life by controlling development along urban canals in a fashion that might transform met ropolitan Phoenix into a series of River Walks echoing the one in San Antonio.
Nor are such quasi-public shadow governments with vast influence unusual in America. They range from airport authorities to regional transportation commands to water conservation districts. One reason they have been so eagerly seized on as the means to run Edge Cities is their abundant history. One such shadow government, the Los Angeles
Department of Water and Power, had a movie made about it. It was called Chinatown. The potential of these quasi-public shadow governments was dramatized by Robert A. Caro in The Power Broker, his biography of Robert Moses.
Moses “had glimpsed in the institution called ‘public authority’ a potential for power … that was exciting and frightening and immense … adding a whole new layer to urban government in America,” Caro wrote. Through the use of public authorities, Moses tore down vast swatches of old city to build bridges, roads, parks, and public housing, making him a person whose “influence on the cities of America was greater than that of any other person.” Indeed, Moses changed the physical shape—the actual outline—of Manhattan Island.
No one I interviewed suggested that either the Salt River Project or its general manager, Jack Pfister, suffered from that kind of megalomania. In fact, Pfister’s rule was so benevolent that as he approached retirement, even Phoenix’s “alternative” tabloid, New Times, eulogized him. It is startling in what used to be called the underground press to find a headline about an Establishment figure that asks: IF THE HEAD OF THE SALT RIVER PROJECT DOESN’T KEEP PHOENIX SAFE FROM THE STORM, WHO WILL?
Such power is typically grounded in how elusive a shadow government’s authority can be. The Salt River Project presents itself to the public in any of four different guises, depending on what purpose suits the board of directors. Over the years it has taken on the rights and privileges of a private, for-profit, dividend-paying, stockholder-owned corporation; an unregulated investor-owned utility; an agent of the federal government; and a municipality-like political subdivision of the state—which is where it gets its right to issue tax-free bonds. It mixes, matches, and retains all these identities to its own ends. The closest it comes to public oversight is an election in which voting power goes to owners of irrigated land in a one-acre, one-vote fashion. Thus, the owner of a two-square-mile cotton operation has exactly 5120 times as many votes as someone with a home on a quarter-acre lot. As a result, although this shadow government is highly urban, with tremendous powers to shape Edge Cities, it is still run by a board of directors on which you see a lot of bolo ties.