Tempe supports Shady Park appeal to open amid fight with senior community
Tempe has filed an amicus brief supporting Shady Park Tempe in its appeal of a ruling by Maricopa County Superior Court Judge Brad Astrowsky that forced the EDM club to stop doing concerts.
Arizona State University opened Mirabella, a 20-story senior-living highrise, in December 2020, while the club, which sits across the street, was closed due to COVID-19.
Citing Shady Park’s “unnecessary and excessive noise,” Mirabella and several residents filed a lawsuit with the Maricopa County Superior Court requesting an injunction to prohibit the club from “emitting noise that exceeds Tempe’s community standard.”
Judge Astrowsky ruled in Mirabella’s favor in a preliminary injunction handed down on April 12, forcing Shady Park Tempe, a popular EDM club on East University Drive just off Mill Avenue, to cease all live music immediately.
The venue filed a formal notice of appeal on Monday, April 25.
The appeal is still pending. Tempe filed the amicus brief on Monday, Sept. 26.
‘A pretty significant step’
Shady Park lawyer Scott Zwillinger sees the amicus brief as “a pretty significant step” in the ongoing battle.
“We hear about amicus briefs in the media from time to time, but they’re usually large cases,” the attorney says.
“It’s unusual in a piece of litigation that involves two private parties that a government’s going to weigh in. So the fact that the city of Tempe is taking the time to do this, and has taken the positions that they have is incredibly significant.”
Mirabella responds
Tom Dorough, executive director of Mirabella at ASU, dismisses the brief as “just another unfortunate example of the City of Tempe, for whatever reason, trying to influence the courts in favor of Shady Park while ignoring its own role in approving our innovative community.”
The city supported Mirabella at every phase of its development from concept to construction, Dorough says.
“Members of the Tempe City Council helped us break ground in early 2018 and Mayor Corey Woods spoke at our grand opening.”
Is the area where Shady Park is located residential?
Chief among the venue’s disagreements with the court’s injunction is the judge’s finding that the area where Shady Park is located is “in any way residential,” Zwillinger says.
The amicus brief says the city has “endeavored for decades to lift the City Center out of decay and nourish a mixed-use community for people to live, play, dine, enjoy entertainment and work.”
The injunction, it argues, “threatens the continuation and success of these efforts by determining there is likelihood of proving that a club’s music is a nuisance based on its erroneous classification of the city center as residential and ‘non-music’ commercial.”
Tempe claims judge ‘mischaracterized’ efforts
The brief also addresses the lower court judge’s decision to disregard evidence concerning the City of Tempe’s investigations of the noise coming out of the venue, saying it “mischaracterized the City’s efforts to maintain a harmonious City Center.”
Zwillinger says, “All that evidence says there was no violation and found the music reasonable for the area. But the lower court judge said, ‘I’m gonna disregard that because I read bias into the City of Tempe in favor of Shady Park against Mirabella.’”
The city argues that it’s very interested in enforcing the code and investigating the matter, and that they did so countless times, and that at no point did they find that the music coming from Shady Park was anything other than reasonable.
The brief ends with the City encouraging the court to “reconsider or reverse” the ruling “to the extent it is based on the false premise that the area where Shady Park and Mirabella are located is a residential and ‘non-music’ commercial area.”
‘Every day that we are closed matters’
This week, the Court of Appeals indicated that it would grant the venue oral argument.
“We’ve asked that that be expedited, because obviously every day that we are closed matters and potentially could be the death knell of Shady Park,” Zwillinger says.
“So we’re hopeful that we’re gonna get oral argument relatively quickly, and then get to the Court of Appeals to right the wrong here. Fingers crossed.”
Zwillinger says the venue’s situation has been compounded by other businesses stepping in to fill the void.
“You’ve got the Westin hotel having open-air EDM concerts at night and the Canopy by Hilton having rooftop music, it appears, now,” Zwillinger says.
“So some of his competitors are taking advantage of the situation. And when you do nuisance law, the whole idea is what is the area like, right? So now it seems pretty common that there is EDM music being played. At least Shady Park has a canopy.”