Tempe EDM club lost its fight with ASU senior-living community: 'Simply devastating news'

A Maricopa County Superior Court judge ruled in favor of Mirabella at ASU, a 20-story senior-living high-rise, and several residents in a lawsuit filed against Shady Park Tempe, a popular EDM club on East University Drive just off Mill Avenue. 

The university opened the high-rise in late December 2020 while the club was closed due to the pandemic. 

Shady Park's owner, Scott Price, has been programming music in that spot since 2015. 

"This is simply devastating news," Price says. "We strongly disagree with the findings, and we will be appealing immediately."

Price says the ruling will force Shady Park to cease all live music operations immediately, as the restrictions mandated make it impossible for the venue to hold live music events.

"If this bad decision is upheld, Shady Park will be forced to close its doors to so many of our friends, family and employees," Price says. "This is because the revenue from shows is vital to our ability to pay for the other business operations."

Mirabella at ASU also issued a statement, saying "This ruling provides relief to Mirabella residents and the surrounding community who have been harmed by Shady Park’s excessive noise."

Its residents are "an important part of the vibrant and growing downtown Tempe community and appreciate its culture and energy, but simply wish to enjoy their community without unreasonable disruption," Mirabella said. 

The statement added, "We hope the court’s ruling results in peaceful coexistence moving forward and a celebration of a community that is inclusive and respectful of all."

Mirabella at ASU had requested a preliminary injunction against the venue.

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Judge's ruling said the club didn't do enough to limit noise

In his ruling, Maricopa County Superior Court Judge Brad Astrowsky noted that within weeks of live music resuming at the club in May of 2021, the City of Tempe sent Shady Park a correction notice for violating a condition in its use permit — a prohibition on advance ticket sales. 

Shady Park reached an agreement with the city wherein it agreed to construct a canopy over part of its dance space if the city agreed to modify the use permit to allow Shady Park to sell advance tickets.

Complaints from Mirabella residents resumed immediately following the resumption of live music in September 2021. 

Astrowky's ruling suggests that the canopy was insufficient to contain the volume.

 “Shady Park never consulted an acoustical engineer or acoustic consultant," the ruling noted. "Further, Shady Park did not perform any testing to determine how effective the canopy was at containing sound.”

In his ruling, Astrowsky wrote that Mirabella residents described the noise and bass coming from Shady Park Tempe — before and after the canopy — as “incessant” and “unrelenting,” complaining that the concerts grow louder as the night goes on, reaching their loudest point after 1:00 a.m.

According to the ruling, every single resident on the north, Shady Park-facing side of Mirabella has complained to Tom Dorough, Executive Director of Mirabella, about the concerts.

Three residents moved. Other have stayed in hotels, guest apartments at Mirabella or other cities on the weekends to avoid Shady Park’s concerts.

'Power and influence of ASU' too much to overcome

Stephen Chilton, a local promoter who owns the Rebel Lounge in Phoenix, asks, "If college kids can't have fun on Mill Avenue, where are college kids supposed to go?"

Astrowsky ruled that "contrary to the inference Shady Park desired the Court to accept, this is not a so-called 'get off my lawn' case."

The adverse effects of Shady Parks concerts are not limited, his ruling noted, to the senior residents of Mirabella, citing a 23-year-old graduate student at ASU who complained of sleepless nights.

Price says his venue has "worked hard to accommodate Mirabella and ASU, but it appears the power and influence of ASU was too much for us to overcome."

Astrowsky ruled that Mirabella at ASU had “made a substantial showing of harm caused by Shady Park’s concerts" whereas "evidence does not establish anything more than speculative harm to Shady Park if required to turn down its music or acoustically seal Shady Park with an enclosure.”

The absence of citations to Shady Park under Section 20-11, Astrowsky ruled, does not mean that there haven’t been any violations of the code.

"The evidence revealed that the City has a lack of interest in enforcing the Tempe Code against Shady Park," he wrote. “It is clear that there is a special or preferential relationship between the City and Shady Park compared to the relationship between the City and Mirabella.”

Price says, "We are hopeful that the court system will correct this injustice and that our appeal will allow us to once again host live music and provide a bit of joy and happiness to music fans in the Valley."

Reach the reporter at ed.masley@arizonarepublic.com or 602-444-4495. Follow him on Twitter @EdMasley.

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