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Shady Park Wins Appeal in Legal Battle Against Mirabella at ASU

The exterior of Shady Park in Tempe with Mirabella at ASU located in the background.
The exterior of Shady Park in Tempe with Mirabella at ASU located in the background. Benjamin Leatherman
Editor's note: This story was updated on December 30 to include a response to the court decision from Mirabella at ASU.

Good news for fans of Shady Park: The popular Tempe bar, restaurant, and music venue has scored a big victory in its long-running legal battle with neighboring senior-living community Mirabella at ASU over noise complaints.

The Arizona Court of Appeals on Thursday sided with Shady Park and overturned a preliminary injunction issued back in April by Maricopa County Superior Court Judge Brad Astrowsky stringently limiting its music events.

The injunction, which was part of a lawsuit brought by Mirabella at ASU against the long-running venue in November 2021, required shows to be held at specific times and at a lower volume.

As a result, venue owner Scott Price pulled the plug on all future music events while fans of Shady Park who were outraged by the injunction protested outside of Mirabella.

Price appealed Astrowsky’s decision. A hearing over the matter took place earlier this month with the venue’s lawyers arguing that its music events constituted free speech.

The Arizona Court of Appeals agreed in a unanimous decision and ruled that the injunction limited the venue’s First Amendment rights.

“[Maricopa County Superior Court’s] preliminary injunction burdens more speech than necessary to abate the alleged nuisance,” the court stated.

The court also found that Astrowsky’s injunction violated principles of separation of powers and deference to other branches of government, contained legally flawed and unworkable enforcement mechanisms, and improperly sought to remedy harms compensable by monetary damages.
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A show takes place on the outdoor patio at Shady Park before its owners added a roof and noise-reducing elements.
Jacob Tyler Dunn
The case was sent back to Maricopa County Superior Court to “reconsider its ruling, accounting for the First Amendment challenge.”

Astrowsky won’t be involved this time, though.

Weeks after issuing the injunction, Astrowsky voluntarily recused himself from the case after hiring a courtroom assistant who had previously worked at Snell and Wilmer, the Valley law firm that’s representing Mirabella at ASU. According to court documents, the judge removed himself to “avoid any appearance of a conflict” in the lawsuit.

Shady Park’s battles with Mirabella at ASU stretch back to June 2021 after residents of the 20-story "intergenerational community," which had opened across the street the previous year, complained about the volume of electronic dance music shows at the venue. Shady Park originally opened in 2015 and had become an EDM hotspot in the Valley since then, hosting DJ sets on its open-air back patio almost every weekend.

In response to the complaints by Mirabella residents, Price installed step-pyramid roofing and other sound-reducing measures in hopes of “[making their] neighbors happy.” The improvements didn’t resolve the issue, though, and Mirabella at ASU filed its lawsuit months later.
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Protesters drum and hold signs outside Mirabella at ASU on April 15.
Jennifer Goldberg
David Leibowitz, a spokesperson for Shady Park, told Phoenix New Times via text message that Price applauded Thursday’s court ruling.

“We are just gratified for the court victory. It's a win for the first amendment and it's a win for all the businesses in downtown Tempe that potentially could've been impacted by [Astrowsky’s] ill-considered decision,” Leibowitz told New Times. “Shady Park has always been a good neighbor for the many years we have been in that location and we look forward to working with the neighborhood as we move forward.”

So will they also be moving forward with hosting shows again, now that the injunction has been lifted? Leibowitz wrote. “it's not that simple” and Price hasn’t made any firm plans just yet.

“Before you go back to live music, you need to book artists and shows. The process can take months. It's not as [easy] as calling up an EDM [artist] and saying, 'Hey, are you busy on Saturday night?'” Leibowitz wrote. “Right now, Scott Price considering the best way forward. As soon as we have a timeline, we will let the entire Shady Park family know.”

In a statement, Mirabella at ASU essentially shrugged off the appeals court’s decision and noted it didn’t challenge the Maricopa County Superior Court’s findings that Shady Park’s gigs would “likely to be found a nuisance” when the suit goes to trial in February.

“The Arizona Court of Appeals simply returned the injunction to the Superior Court to consider a new remedy,” the statement read.

And, per its statement, Mirabella at ASU is confident it’ll prevail in the lawsuit and hinted that the appeals court’s decision provided them with a legal avenue of attack.

“The matter remains on course for a trial on Mirabella's request for a permanent injunction [against Shady Park], now with some helpful guidance about how to fashion remedies for the nuisance," Mirabella at ASU said.
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Benjamin Leatherman is a staff writer at Phoenix New Times. He covers local nightlife, music, culture, geekery, and fringe pursuits.

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