City of Tempe supports Shady Park, asks court to reverse ruling in case against retirement community

TEMPE, AZ (3TV/CBS 5) - Music venue versus retirement community - the ongoing drama between Shady Park and Mirabella across the street is heating up. The City of Tempe filed a court document in support of Shady Park, asking the court to reverse its ruling from April that put restrictions on the music venue. Shady Park said it was so restricted it forced them to stop live performances. So now, with the city stepping in, could music come back?

In this case, the City of Tempe is saying the judge mischaracterized downtown Tempe in his ruling, calling it residential when they said it’s always been mixed-use, including music venues and high energy like Shady Park brings. The judge also recused himself from the case two weeks after Shady Park filed their appeal and about a month after making his ruling, citing a conflict of interest. So now the city and Shady Park say they want the music back.

Shady Park has been a staple in downtown Tempe since 2015, known for live performances and a community of music lovers. That all ended after a judge ruled in favor of Mirabella at ASU, a retirement community across the street. “We had a duty to step in and say no, we are the elected body running this city, and our ordinances are for us to decide,” said Tempe City Council member Randy Keating. Keating said the judge got it wrong. The feud began when Mirabella residents moved in during the pandemic in 2020 while live concerts weren’t happening at Shady Park.

When concerts returned, residents complained about the noise and eventually filed a lawsuit against Shady Park in Nov. 2021. In April, the Maricopa County Superior Court said Shady Park had been a nuisance to the surrounding community and needed to turn the music down and restrict live performance hours, so much so, that Shady Park said they could no longer have live concerts at all. “For a municipality to step in and call out the wrongs as they see it is incredible significant,” said Scott Zwillinger, attorney for Shady Park.

Zwillinger, siding with Shady Park, said it’s an unusual move for the City of Tempe to get involved in a private legal matter.

In an amicus brief the city filed last week, they said the judge misunderstood the nature of the City Center in downtown Tempe calling it “principally residential” when the city said that’s never been the case. The brief also said the judge referred to noise complaints and that the city didn’t enforce its noise ordinance but didn’t consider those complaints unfounded. “We did enforce our sound code, the police investigated time and again, and found the sound reasonable for the area,” said Zwillinger.

The executive director of Mirabella, Tom Dorough, said in a statement:

Now, the City of Tempe is asking the Superior Court to reconsider or reverse its ruling in hopes music can return and add to a vibrant downtown. “Shady Park has always operated within the legal limits of the City of Tempe, so ultimately what I would like to see is some sort of resolution that all parties can agree on and be happy with,” said Keating.

Shady Park attorneys said they’ve asked the court of appeals to expedite arguments on this. Their hope is this will go to trial in the spring.

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