An appellate judge has sided with Shady Park in a ruling that sends the concert venue’s dispute with Mirabella at ASU back to superior court.
The Arizona Appeals Court judge cited the First Amendment in vacating the lower court’s injunction regarding time and decibel restrictions at the downtown Tempe bar.
“The superior court’s injunction burdens more speech than necessary to address the asserted harm,” the appeals court wrote.
Mirabella, a high-rise senior living community, said Shady Park’s concerts generated noise that interrupted residents’ sleep, work, study and conversations.
The preliminary injunction was put in place in April in response to a lawsuit by Mirabella and several residents against Shady Park, which is on East University Drive off Mill Avenue.
The bar asked the court to vacate the injunction on First Amendment grounds, saying it was overbroad, violated principles of separation of powers and contained legally flawed and unworkable enforcement mechanisms.
The appeals court decision said it is not clear “whether or to what extent the court’s imposition of a curfew impacted the other provisions of the injunction.
“We therefore vacate the entire injunction so that the superior court can reconsider its order taking into account Shady Park’s First Amendment argument. Because we vacate based on the First Amendment, we decline to analyze Shady Park’s other arguments.”
In a statement, Mirabella at ASU said the latest opinion “did not challenge the Superior Court’s findings that Shady Park’s outdoor concerts were likely to be found a nuisance at trial.”
Mirabella officials said “the court of appeals simply returned the injunction to the Superior Court to consider a new remedy,” adding the case remains on course for a trial early in 2023.
Shady Park applauded the ruling in a release but said “while today is a good day, sadly, this is not the end of the matter.
“ASU’s retirement home is still litigating to stop the music.”