Shady Park wins appeal, dispute with Tempe retirement community goes back to court

The Tempe music venue says its First Amendment rights were violated
The Shady Park music venue in Tempe won its appeal, saying an injunction against live music violated the First Amendment.
Published: Dec. 29, 2022 at 1:32 PM MST|Updated: Dec. 29, 2022 at 5:33 PM MST
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TEMPE, Ariz. (3TV/CBS 5) — The Arizona Court of Appeals, on Thursday, ruled in favor of a popular Tempe music venue in its legal battle with a nearby retirement home, sending the case back to court. “It represents justice,” said Shady Park’s attorney Scott Zwillinger. “It’s a good day for Shady Park.”

Shady Park has been a live, outdoor music venue on Mill Avenue since 2015, which is around the same time Arizona State University picked the site for a retirement community called Mirabella—right across the street. Mirabella at ASU opened its doors in late 2020, at a time when live concerts weren’t happening due to the COVID-19 pandemic. When concerts resumed in May 2021, Mirabella residents began filing noise complaints against Shady Park.

The venue halted the concerts a second time while it built a canopy around the venue to help contain the sound. When live music resumed in September 2021, residents continued to complain about the noise and, that November, filed a lawsuit against Shady Park, claiming they were a public nuisance.

Last April, a Maricopa County Superior Court judge ruled in favor of Mirabella and ordered Shady Park to lower its noise levels. Live musical performances were also restricted to between 7 and 11 p.m. six days a week and 2 to 7 p.m. on Sundays. The venue’s owner said that the new rules prevented them from putting on any live music performances.

Tempe’s city council came forward in support of the venue, and in October, the City of Tempe filed an amicus brief asking the court to reverse its ruling. Shady Park had appealed, saying the court’s injunction violated its First Amendment rights. A judge agreed with Shady Park that the injunction violated the venue’s First Amendment rights. “Music is absolutely a form of expression, it is an art form and it is squarely protected by the First Amendment,” said Zwillinger, who also added that the curfew is too broad a restriction.

The court of appeals struck down the injunction this week and sent it back to the superior court to reconsider, this time taking into account Shady Park’s argument regarding the First Amendment. Zwillinger said he hopes the two sides can come to an agreement outside the courtroom. “We are hopeful that ASU and Mirabella will see this as an opportunity to sit down and come to a reasonable resolution which is all we’ve ever been looking for,” he said.

Shady Park tweeted out its statement regarding the court ruling:

Arizona’s Family reached out the Mirabella at ASU, and they provided the following response: