By Terri Jo Neff |
For now, the residents and developers of a 20-story retirement community recently built in the heart of ASU’s flourishing entertainment district have silenced live music at a popular club, but the owners of Shady Park Tempe promise to appeal.
Mirabella at ASU is located across the street from Shady Park, a popular eatery – dance club where live music has been offered since 2015. But on April 13, a Maricopa County judge imposed several restrictions on the business, making it impossible for Shady Park to hold live music events, according to a company statement.
For its part, Shady Park sees an appeal of Judge Brad Astrowsky’s ruling as the only option to save the business after all these years.
“We remain hopeful that the court system will correct this injustice and that our appeal will allow us to once again host live music and provide a bit of joy and happiness to thousands of people every week,” the statement reads.
And owner Scott Price warns Shady Park will be forced to close down for good if Astrowsky’s ruling is upheld on appeal.
“This is because the revenue from shows is vital to our ability to pay for the other business operations,” Price said of the ruling, adding that “the power and influence of ASU was too much for us to overcome.”
Shady Park and other clubs in along East University Avenue have been in operation long before the Mirabella at ASU project broke ground. And there is no one who does not know that clubs and noise go hand in hand, particularly in a college community.
But ASU President Michael Crowe saw an opportunity to attract developers interested in taking advantage of ASU’s property tax exemption. Mirabella opened in December 2020 while several restaurants, clubs, theatres, and other “nightlife” businesses remained shuttered due to the economic effects of Gov. Doug Ducey’s various public health executive orders.
Once Shady Park reopened in May 2021, the folks at Mirabella complained about the noise. Price shutdown the live music while a canopy was constructed to help with the noise, but more complaints flooded in once live music started up again in September.
The lawsuit filed in October sought a preliminary injunction against Shady Park to prevent live music events which exceed Tempe’s “community standards” for noise. Then just before Astrowsky conducted a trial in February, Mirabella at ASU offered Shady Park “a large sum of money to close down and agree to let them take over our lease,” according to Shady Park.
The trial left many legal observers comparing the Mirabella residents to those who complain about noise after moving into a neighborhood that is in an airport’s well-established flight path. But the judge sided with the newcomers, ruling that residents made a substantial showing of harm caused by the Shady Park live concerts.
Astrowsky also faulted the efforts Shady Park took to address the noise complaints, saying there was “no credible evidence” that the canopy mitigated the noise.
“Shady Park never consulted an acoustical engineer or acoustic consultant,” the judge ruled. “Further, Shady Park did not perform any testing to determine how effective the canopy was at containing sound.”
Astrowsky was also not impressed with Shady Park’s arguments of the financial damage to the business if forced to turn down its music or construct an enclosure “to acoustically seal” the venue. The evidence presented about the impact was merely that of “speculative harm,” he ruled.
To rub salt into the wound, a post-ruling statement by Mirabella at ASU noted the “relief” Astrowsky brought to its residents and the surrounding community.
“We hope the court’s ruling results in peaceful coexistence moving forward and a celebration of a community that is inclusive and respectful of all,” the statement reads in part.
Shady Park says it has ceased all live music operations, “as the restrictions mandated make it impossible for us to hold live music events.” It could take a few weeks before an expedited appeal can be heard, leaving the company without vital revenue.
In the meantime, the ASU Foundation is benefiting richly from Mirabella at ASU, despite the impact to the local community and culture. It is a situation that is garnering scrutiny for other decisions by ASU, the Arizona Board of Regents, and President Crowe for using public tax-exempt property to benefit private businesses.
The Arizona Supreme Court recently ruled that a lawsuit filed by Arizona Attorney General Mark Brnovich against the Regents and ASU can move forward to trial. In that case, the attorney general contends the 16-story Omni Hotel Tempe built on tax-exempt public property violates the Arizona Constitution’s Gift Clause prohibition on providing public monies for the benefit of non-public enterprises.
A jury trial about the ASU – Omni deal could be held as early as Spring 2023.