Noise from Shady Park concerts has been a nuisance to residents at ASU’s retirement home and surrounding businesses, a county superior court judge ruled in an opinion filed Wednesday.
In siding with Mirabella at ASU, the judge ordered three actions for Shady Park, a restaurant and music venue near Mill Avenue: to limit the duration of the concerts, lower the noise level and improve the use and positioning of sound mitigation technologies. Instead of electronic dance music concerts that last until 2 a.m., Judge Brad Astrowsky ordered Shady Park to hold its concerts Monday through Saturday between 7-11 p.m. and its Sunday concerts from 2-7 p.m.
Those restrictions will force Shady Park to cease all live music events and potentially force it to close, Shady Park said in a statement Wednesday.
Scott Zwillinger, Shady Park's lawyer, said in an email they "disagree vehemently" with the judge's conclusion and assured that they will be appealing the ruling.
Mirabella residents are "grateful" to hear a stop to "Shady Park's excessive noise," Mirabella's lawyer Jean-Jacques Cabou said in an email, after nearly a year of fighting with the music venue across the street.
The disagreement began in May 2021, when Shady Park resumed its concerts after a pandemic hiatus and after its new neighbors, who moved in December 2020, had enjoyed six months of noise-free living. Shady Park built a step-pyramid in July to help mitigate sound, and Mirabella spent over $1 million in window upgrades, but the noise continued to bother residents. Mirabella, along with five fed-up residents, brought it to court in October 2021.
What both sides argued in trial
Mirabella sued Shady Park on two counts, public and private nuisance, claiming to want only one thing: to turn the music down. But Shady Park said it wasn't that simple; the sound quality would be compromised, and DJs would be less likely to book their venue.
The residents living in Mirabella's north side, which faces Shady Park, argued the concerts disrupted "routine daily activities like thinking, sleeping, conversing, working, studying, and enjoying family and friends," the opinion said. Mirabella Executive Director Tom Dorough said the noise affects business, making units on the north side of the building difficult to sell. Three residents had to move units from the north to the south side, where the noise doesn't affect residents.
Both parties hired sound experts to study Shady Park's noise levels and determine if it exceeded Tempe's decibel limit. Mirabella's expert said the noise level did not comply, and Shady Park's expert said the noise was in "general compliance."
The conflicting expert opinions didn't matter much, because two days after the trial concluded, Tempe City Council voted to remove all decibel limits, striking certain sections of the law. So the judge relied largely on interpreting Section 20-11 of the Tempe Noise Code, which prohibits "unnecessary, excessive and annoying noises from all sources subject to its police power."
Part of Shady Park's defense was that it had never been cited by Tempe for violating the city's noise ordinance, and its noise is no louder than other Mill Avenue bars and restaurants. Tempe police officers testified that Section 20-11 is "almost never" enforced or is only enforced during business hours, suggesting why Shady Park has never received a citation for its noise.
Despite no citations, police officers have responded to calls from Mirabella residents regarding noise complaints. Two officers who responded to residents complaining about the noise testified they deemed the noise level appropriate while inside the apartments.
Mirabella's lawyers said retirement home residents weren't the only ones irritated, and those who raised complaints varied in age. The Westin Tempe, a neighboring hotel, reported around six to nine guest complaints every weekend. The nearby Canopy by Hilton reported guest complaints every time Shady Park holds a concert.
Caitlyn Finnegan, a 20-year-old recent ASU graduate who lives in the nearby oLiv apartments, said the noise from Shady Park made her bed shake and made "sleeping nearly impossible," the court document said.
The court's order
"Shady Park is an important part of the Valley’s music community and the local community of Tempe," Judge Astrowsky said in his opinion. But "its importance does not provide it with the permission to annoy its neighbors, which comprise of hotel guests, apartment residents, and Mirabella residents."
So he ordered three actions: concerts must now end earlier and not last as long, the maximum noise level must not exceed 97 decibels and Shady Park must do more to lessen noise. The latter two orders came from the testimonies or recommendations of Shady Park's sound experts, Todd Beiler and Jared Jackson.
Beiler testified the low end of a typical sound level during an EDM concert is 97 dB(A), and Jackson testified that "peak time during a show at Shady Park the goal is 100 dB(A) maximum," according to the court's opinion.
As a mitigation technique, Jackson suggested installing more subwoofers to decrease the volume of the low-frequency noise, the opinion said.
Shady Park will still "cease all live music operations immediately," according to its statement because "the restrictions mandated make it impossible for us to hold live music events.
Since the decision was released, a Change.org petition to Tempe City Council began recirculating asking for support and continuance of live music at Shady Park. The petition was created in June 2021 and had reached over 12,800 total signatures as of Thursday.
"We remain hopeful that the court system will correct this injustice and that our appeal will allow us to once again hold live music and provide a bit of joy and happiness to thousands of people every week," Shady Park said in the statement.
Editor's note: This story was updated at 12:40 p.m. on April 14, 2022, to include information about the Change.org petition. It was also updated at 3:30 p.m. to clarify what Shady Park built in July to mitigate sound from its concerts.
Caera Learmonth is a full-time reporter for the Community and Culture desk. She was previously the Executive Editor of her high school newspaper and has taken journalism programs at the School of the New York Times and University of Southern California.
Jasmine Kabiri is a senior reporter at The State Press. She has previously worked at The Daily Camera, a local newspaper in Boulder, Colorado.