Shady Park in Tempe Is Facing a New Legal Battle Over Live Music Noise Levels

The conflict between Tempe nightspot Shady Park and the nearby Mirabella at ASU senior housing development took a new twist recently amid a lawsuit aimed at forcing the popular eatery, bar, and music venue to turn down the volume of its concerts.

On November 5, a judge ruled against Mirabella at ASU, which filed a lawsuit against Shady Park on October 15, alleging that the venue’s noise levels are hurting both the real estate development and several of its residents who say loud music is interfering with their health and well-being. Five residents are also plaintiffs in that lawsuit.

The judge denied the plaintiffs’ request for a temporary restraining order that would have required Shady Park to stop hosting live music while the lawsuit moved forward. It’s the first salvo in what could be a protracted legal fight, as Shady Park works to stop efforts to change the way it presents concerts or stop those concerts altogether.

“You can’t move into a community and then want to change the face of the community,” says Shady Park owner Scott Price, who opened the venue in 2015.

The case is scheduled to be heard in mid-February, giving both sides three months to bolster their arguments. Without suggesting how he might rule in the future, the judge hearing the case noted Friday that one of the essential issues is whether or not Shady Park concerts exceed the legal noise limit in Tempe. Mirabella at ASU insists they do, while Shady Park says it has never been cited by the city for excessive noise.

The dispute actually started earlier this year, after some Mirabella at ASU residents complained about noise levels at Shady Park. The bar is located at 26 East University Drive and the housing tower sits just 100 feet away, across the street at 65 East University Drive. When Shady Park opened, the nearest residential property was 600 feet away, according to city records. Residents began moving in during December 2020, when Shady Park and many area businesses were temporarily shuttered due to Covid-19 restrictions.

The complaints came after Shady Park reopened, according to a June 16 statement the venue posted on social media. “A few weeks ago some of these residents began a coordinated, aggressive campaign to attempt to force the City of Tempe to shut down live music at Shady Park,” it read in part. In their lawsuit, plaintiffs say they want Shady Park to lower the volume and bass of its music events, not stop doing concerts altogether.

“We continue to hope to find a solution that works for all parties and remain open to any solution that allows Shady Park to continue operating without disrupting Mirabella residents with excessive noise,” says Tom Dorough, executive director for Mirabella at ASU. His comment was part of a written statement sent to Phoenix New Times by email on November 3.

Price says Shady Park has already undertaken noise mitigations efforts, by closing for part of the summer to install a wooden canopy over the outdoor venue designed to reduce the level of sound emitted from the venue. And he insists that lowering the volume or bass would decrease the quality of the EDM music they’re best known for, driving away both artists and audiences.

“Shady Park has a special place in the EDM community,” explains venue attorney Scott Zwillinger. “If the sound is lowered so all you hear is the sound of the crowd, world-renowned artists won’t play here, and Shady Park will be forced to shut down.”

New Times reached out to attorneys for both Mirabella at ASU and individual plaintiffs, but had not heard back as of this writing. Their complaint filed in October suggests they’ll focus on noise levels at Shady Park and whether those levels exceed city limits, as well as negative impacts of that noise on both the senior center and its residents.

The defendants filed a response with the court, arguing that the current sound level is appropriate because the city has never cited them for a noise violation, and because the city values the area as an entertainment hub. The response also suggests that developers should have built the senior center with better noise-mitigating materials.

The original use permit for outdoor entertainment issued to Shady Park in 2015 says that “sound from music must conform to the noise ordinance.” It also states that the owner is responsible for minimizing sound emanating beyond the property line, and says the business shall “not operate as a concert venue.”

New Times requested copies of Shady Park’s current permits for indoor and outdoor live entertainment from both the city and the venue, but neither has provided them to date.

After Friday’s hearing, Shady Park posted a statement on social media, inviting supporters to contribute to its legal defense fund through the online crowdsourcing platform FundRazr. That same statement calls on people to refrain from posting “threatening comments or harsh words,” an admonition that seems particularly timely.

It appears the lawsuit may have prompted a threat against Mirabella at ASU on Friday morning, based on a comment made by one of its attorneys during the hearing. New Times contacted the Tempe Police Department after the hearing, and is awaiting information on both the alleged threat and any police action that’s been taken in response.

Meanwhile, Tempe is managing to stay above the fray.

The city of Tempe has not taken an official position on the lawsuit, but did send a written statement to New Times via email on November 4. “Tempe has worked with both the residents and Shady Park’s owner throughout this time,” it reads in part. The statement explains Tempe’s overall approach to the issue as follows:

“The city remains open to hearing the feedback and concerns about quality of life issues from all residents. Our downtown and other areas of Tempe continue to grow and become home to increasing numbers of diverse populations. We promote mutual respect and the health balance of everyone’s right to live, work, recreate and be entertained. We believe this kind of peaceful co-existence can be achieved in the matter that is between Mirabella and Shady Park.”

Amid the litigation, Price says he’s working to preserve more than live music at his own small business. “We’re fighting for not just Shady Park, but for the music and art that gives downtown Tempe its soul.”