A senior living high-rise battles EDM club Shady Park over noise near ASU's Tempe campus

Ed Masley
Arizona Republic

In the seven years since Scott Price opened Shady Park Tempe on East University Drive just off Mill Avenue, the indoor/outdoor venue has become one of the Valley's hottest destination spots for fans of electronic dance music.

It is an ideal setting for that type of music — bordering the campus of a school known for partying, Arizona State University.

Or so it seemed until a 20-story senior living high-rise moved in right across the street in late December 2020, billing itself as "a truly unique retirement experience ... fueled by lifelong learning and collegiate energy."

At the time, with COVID-19 cases reaching record numbers, Shady Park was closed, which meant no speaker-shaking bass drops on the weekends.

But since Shady Park's reopening in May, the noise that often comes with that collegiate energy has been at the heart of an ongoing battle between the club and residents of Mirabella at ASU saying they can't sleep on weekends.

Citing "Shady Park’s unnecessary and excessive noise," Mirabella filed a lawsuit with the Maricopa County Superior Court requesting an injunction to prohibit Shady Park from "emitting noise that exceeds Tempe’s community standard."

The senior living facility also requested a temporary restraining order, which the judge denied at a Nov. 5 hearing. The case is expected to come to trial on Feb. 15 and 16.

Mirabella/Shady Park history:As live music returned to Shady Park in Tempe, its new neighbors complained about the noise

'It's a pretty raucous neighborhood'

David Leibowitz, a public relations consultant for the venue, says, "It defies belief that this is what they think is appropriate grounds for a lawsuit."

Leibowitz said neither of the hotels flanking Shady Park — the Canopy by Hilton or the Westin Tempe — have complained about the volume.

"It's a pretty raucous neighborhood," Leibowitz says.

"Anybody who came down there at 11 o'clock on a Saturday night and stood there would be very well aware of what the neighborhood is about. This is not a loud area simply because Shady Park is there."

There's student housing right across the street. 

"Students are walking to nightclubs, walking home, going to restaurants, moving around, there's traffic Friday night, Saturday, people are playing car stereos with the windows open, things like that," Leibowitz says. 

"This is not a silent cul-de-sac, and all of a sudden Shady Park cranked up Sasha and Digweed or something."

The outside bar at Shady Park Tempe in downtown Tempe.

Shady Park has been in the neighborhood since 2014

"Mirabella showed up, built an ill-advised senior center across the street from a nightlife venue in the middle of an entertainment district and started shouting at everybody to get off their lawn," Leibowitz says.

He feels putting a senior facility right across the street from Shady Park is a bit like deciding to open an EDM venue in Sun City West.

"What would the reasonable expectation be? The reasonable expectation would be there's gonna be a lot of complaints and people are gonna be deeply unhappy because it's not the right location," Leibowitz says.

Where Shady Park is now, he says, is "the exact right location" for a venue catering to fans who like a type of music that requires volume.

"Performers and EDM fans come from all around the United States," he says, "to experience this music the way it's meant to be played."

Request for a temporary restraining order against the club was denied

In addition to filing a lawsuit, Mirabella requested a temporary restraining order, which the court declined to grant in a hearing on Nov. 5.  

Scott Zwillinger, the attorney handling the case for Shady Park, says that's a good sign for the club.

"They had to demonstrate a likelihood of success on the merits," he says. 

"And the judge found that they didn't meet that. There's a lot of work ahead and anything can happen. But we're confident that when this ends, the court is going to conclude that Shady Park is a good citizen of downtown Tempe, provides a valuable service and is a landmark in the EDM community."

Mirabella officials had a different view of the hearing.

In a statement following that hearing, Mirabella said they were "encouraged that the Court made clear that no organization is above the law and shared its expectation that in the time leading up to the trial Shady Park will comply with the city’s noise ordinance."

Shady Park maintains that it's already in compliance with that ordinance.

Zwillinger says police have responded to complaints from Mirabella residents, checking sound levels outside the high-rise and inside residents' apartments. 

"What the police officer noted was that you could faintly hear the music only when you were adjacent to the windows," he says.

"If our music was a nuisance, if it was too loud, if it was disturbing the area, they would have cited Shady Park. But time and again, they found that there's no issue with Shady Park's music."

Mirabella has offered to help keep the noise down

In its statement, Mirabella said it isn't out to close the venue or prevent live music from occurring there.

"We simply are requesting that Shady Park keep the music emanating from its concerts at a lawful level," the statement reads, also referencing a standing offer to assist the club in achieving what it feels would constitute a lawful level.

"Our offers to provide technical, structural, and financial assistance to Shady Park to achieve just this have been ignored, and Shady Park’s owner has refused to speak with us to resolve this outside of the court system," the statement reads. 

"Nonetheless, 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.”

Leibowitz says Mirabella offered to remodel Shady Park "to their specifications." 

Price declined.

"It's a little bit like me saying, 'I don't like your house. But I'm gonna pay to remodel your house and you can live there. You'll just have to make do with what I do to your house.' That's not a serious offer."

Leibowitz says Price "has really just done everything in his power to be a good neighbor" and has met with representatives from Mirabella on multiple occasions.

"They've never brought forward a meaningful idea about how to solve this," he says. 

"I don't know under what theory they want to go to court and argue that Scott Price needs to do anything different than he's already doing."

Shady Park owner has taken some steps to lessen the noise

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.

Leibowitz says that the area "is now 95% walled in using double- and triple-pane glass, acoustic tiles and other things to deaden the sound."

They also moved the speakers to direct that sound away from Mirabella.

"Scott Price does not want to have a fight with ASU," Leibowitz says. "He's an ASU graduate. He loves the university."

Leibowitz feels the high-rise should have been constructed with the noise of the surrounding neighborhood in mind, much like the hotel he recently stayed in on the Strip in Las Vegas.

"The Strip is loud, but the hotel was silent," he says.

In the complaint, Mirabella at ASU suggests that because the venue was closed when the high rise opened, no one could've seen this coming.

"This is one of the most disingenuous points that Mirabelle makes," Zwillinger says.

"During the planning stage, while we were open, these issues should've been obvious, they should've retained acoustical consultants to consider the design and building which was going to be used for retirement homes."

Zwilliger says the venue's case will ask, in part, "Was this designed appropriately, not only for a high rise in the center of a busy entertainment district but a high rise in the center of a busy entertainment district that caters to seniors?'"

At the end of the day, he says he feels the noise at Shady Park is part of what the university is selling to the residents at Mirabella.

"It's exactly the collegiate energy that Mirabella uses when it advertises its apartments," he says. 

"So it's interesting to me that they advertise it as a place for people who are a little older to come enjoy the collegiate energy, and they get angry at the sound of that collegiate energy."

Reach the reporter at ed.masley@arizonarepublic.com or 602-444-4495. Follow him on Twitter @EdMasley.

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