Shady Park Tempe has filed a motion to dismiss a lawsuit filed by Mirabella at ASU, a 20-story senior-living high-rise the university opened just across the street from the popular EDM club in December 2020.
Citing “Shady Park’s unnecessary and excessive noise,” Mirabella 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.”
The senior facility also requested a temporary restraining order, which the judge denied at a hearing on Nov. 5.
The case is set to come to trial on Tuesday, Feb. 15.
Shady Park’s motion to dismiss was filed after the club received a letter from the City of Tempe’s city manager Andrew B. Ching on Jan. 6.
No noise violations issued by Tempe police or code enforcement
Ching’s letter notes that noise complaints by Mirabella residents have been investigated by the Tempe Police Department and code enforcement officers, resulting in no violations being issued against the indoor/outdoor venue on East University Drive.
“This is because no police officer or code enforcement officer has found probable cause that the music from Shady Park is unjustified, unnecessary, unreasonable or offensive, and disturbing to persons of reasonable sensitivity,” Ching wrote.
The motion to dismiss also cites the body-camera footage Shady Park obtained of Tempe Police investigating Mirabella residents’ complaints, which according to the motion “show that Plaintiffs are grossly exaggerating any noise inside their residences.”
David Leibowitz, a public relations consultant for the venue, said he found the video to be not only telling but hilarious.
Leibowitz pointed to footage of one resident welcoming Tempe police into her home shortly after 11 p.m. on Saturday, Sept. 25.
“The comedy is the two cops come in and the woman says, ‘Oh, my husband’s asleep in the next room’ as if they’re supposed to be quiet or something,” Leibowitz said.
“Then they spend all this time there. And there’s just no sound. There’s no noise. And the lady is just ‘Oh, well, you know, it was louder earlier.'”
The video shows the woman telling the officers, “It gets much louder than this. I don’t why they turned it down.”
It also shows an officer telling the woman, “Right now, and other times when I’ve come out, it’s not noise at an unreasonable level,” to which the woman responds, “This isn’t bad.”
Leibowitz felt the body camera footage tells you everything you need to know about the situation.
“Even when they’re standing on the patio outdoors, you hear a little bit, but it’s not paintings falling off the walls or anything like that,” he says. “
And this is Saturday night at 11:30 when presumably Shady Park is at its loudest. “
Shady Park’s owner Scott Price has been programming music in that spot, just off Mill Avenue, since 2014.
What is Mirabella?
Mirabella, billed as “a truly unique retirement experience … fueled by lifelong learning and collegiate energy,” opened in December 2020.
At the time, with COVID-19 cases reaching record numbers, Shady Park was closed. It reopened the following May.
The motion to dismiss argued “the Court should give deference to the city’s interpretations and findings” and that “plaintiffs cannot meet the preliminary injunction requirement of showing a strong likelihood of success on the merits.”
It further argued, “The Court should grant summary judgment in favor of Shady Park to the extent that Plaintiffs’ claims for private and public nuisance are based on alleged violations of Tempe’s noise ordinances.”
When reached for comment, a representative for the senior-living facility told The Arizona Republic, “Out of respect for the legal process, Mirabella at ASU will await a future opportunity to comment.”
Mirabella did, however, share a statement in November after failing to secure a temporary restraining order after Shady Park.
“We take this opportunity to affirm that it is not our aim to close Shady Park or even prevent music from occurring there,” the statement read.
“Rather, we simply are requesting that Shady Park keep the music emanating from its concerts at a lawful level.”
It went on to say that Price has “refused to speak” with representatives of Mirabella to resolve the matter outside of the court system.
“Nonetheless,” the statement added, “our hand remains extended to Shady Park’s owner to come to a resolution that is respectful of all in the community of which Mirabella residents are also very much a part.”
Price shut the club down for a couple of months last summer, spending several hundred thousand dollars to put a canopy over the outdoor concert area. He made other efforts to deaden the sound, using double- and triple-pane glass and even moving the speakers.
“Scott Price has spent a lot of money to try to fix this to the satisfaction of the folks at Mirabella,” Leibowitz said.
“I mean, the guy has invested more than $300,000 in soundproofing work. And nobody told him to. He’s done this in an attempt to be a good neighbor,” he continued. “He very well could play live music seven nights a week until 2 o’clock in the morning. That’s what this permit with the city would allow him to do.”
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