# Write 25o words discussion board about this.
# I will attach 4 discussions and I need 150 words reply for each.
Recently, a lawsuit was filed in Maricopa County Superior Court by Mirabella at ASU, a retirement community on the ASU Campus. This is a tort action (specifically, a public nuisance (Links to an external site.) claim) seeking to require a neighboring property, the Shady Park music venue adjacent to Mill Avenue in Tempe, AZ (an entertainment district) to lower the volume of the music at the nightclub.
You can easily find the article by searching “Tempe music venue to continue operations amid lawsuit from neighboring retirement community”.
I found the article in the Phoenix Business Journal, November 9, 2021 (the article is copied below).
But first, a little background about the tort of nuisance…
In Week 14 (this week), we learn about torts which are private civil actions (that is, not crimes) that protect personal and property rights. However, the tort of nuisance relates to property and is not covered until Melvin, Ch 47, p. 897 which we do not read. And Melvin only mentions environmental pollution as an example of a nuisance. Actually, a nuisance occurs whenever a neighbor uses their property in any way that interferes with your ability to fully enjoy your own property rights. It could be odors or bright lights or rat infestation or pollution or any other noxious behavior — or noise, as alleged in this case.
A public nuisance is a nuisance that affects a large number of people. A private nuisance is between a very limited number of players, maybe just two neighbors.
Now, your assignment: Read about this public nuisance case (a tort!) filed by Mirabella against Shady Park and either
1) discuss your respectful opinion and give some legal reasoning behind it,
or 2) discuss some other legal aspect of the case – there are so many great things to discuss!**
**(what is a TRO and why did the court deny Mirabella’s request for a TRO?)
(what damages are sought or should be awarded if any?)
(what is an injunction?)
(how should the court balance the equities in deciding who wins?)
(is Mirabella seeking an extreme property right or acting reasonably?)
(shouldn’t the City encourage diversity by welcoming the retirement community?)
(how could the parties work it out somehow?)
(was litigation the correct approach to this case?)
(is this a dispute that should be handled in the political process? i.e., plaintiffs should instead lobby City Hall to strengthen the noise ordinance?)
(why is this an equity case?)
(so many others!)
Phoenix Business Journal, November 9, 2021
Phoenix Business Journal – Nov 9, 2021, 4:09pm EST
Shady Park, a Tempe bar and live music venue, plans to continue to operate normally after a Maricopa County Superior Court judge denied a temporary restraining order aimed at requiring the venue to lower the volume of its music.
Some residents of the Mirabella at ASU, a retirement community on Arizona State University campus, filed a lawsuit against Shady Park after complaining about the music levels at the venue. Shady Park, at 26 E. University Drive, east of Mill Avenue, is directly across the street from the Mirabella, which opened during the Covid-19 pandemic.
However, Shady Park representatives said despite several calls for noise complaints to the city of Tempe from Mirabella residents, the venue has never received a citation for a noise violation. Scott Zwillinger, partner at Zwillinger Wulkan, representing the owner of Shady Park, said police have been called several times, and have measured noise levels around the venue and inside the residence of one person who complained, and did not issue a citation.
Zwillinger said his client has always been open to any solutions that would help address concerns without lowering the quality of the music at the venue. Scott Price, the owner of Shady Park, has already paid to construct a canopy over the concert area to contain the sound more effectively.
The suit against the venue sets a dangerous tone for other downtown Tempe businesses, including many others that are oriented around nightlife and live music, Zwillinger said.
“It is no secret that downtown Tempe is filled with businesses a lot like my client’s,” Zwillinger said. “If people can move into an area and demand that those businesses change, it won’t just affect my client, but could affect all of the businesses in downtown Tempe.”
Shady Park has been open since 2014.
Mirabella at ASU is operated by Pacific Retirement Services, an ASU spokesman said.
In a statement, residents of the Mirabella said they do not wish to close down Shady Park, but instead for the venue to comply with the noise ordinance of the city.
“We take this opportunity to affirm that it is not our aim to close Shady Park or even prevent music from occurring there,” a representative of Mirabella at ASU said in a statement. “Rather, we simply are requesting that Shady Park keep the music emanating from its concerts at a lawful level. As previously noted, 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. 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.”
‘Due diligence’
David Leibowitz, a marketing professional representing Price, said the disagreement is a clear example of “the necessity of due diligence.”
“This might just have been a failure of a development project that didn’t understand the surroundings very well,” Leibowitz said.
There are ways to construct residential facilities in areas with high levels of noise so residents cannot hear outside noise, he said.
“(Price) doesn’t want to pick a fight,” Leibowitz said. “He just wants to operate his business.”
Zwillinger said the case is scheduled to go to a preliminary injunction trial in February, and before the trial there is work to be done on consideration of the claims and do depositions, which will include researching if the Mirabella building was designed appropriately to handle outside noise.
In a statement, the city of Tempe said city officials have worked with both the residents of the Mirabella and Shady Park to address concerns.
“Earlier this year, concerns were raised by Mirabella residents about the noise level from Shady Park on weekends,” the city’s statement read in part. “As live music events have resumed during the pandemic, these concerns became more frequent. Tempe has worked with both the residents and Shady Park’s owner throughout this time, and Shady Park received a city permit to build a new structure over its outdoor area in an effort to mitigate noise. It is the right of any party that feels aggrieved to seek judicial relief and that is what is occurring now through Mirabella residents’ motion to get the sound levels turned down.”
The city’s statement goes on to say city leadership believes a “peaceful co-existence can be achieved” between Shady Park and the Mirabella residents.
“(Price) doesn’t want to pick a fight,” Leibowitz said. “He just wants to operate his business.”
Zwillinger said the case is scheduled to go to a preliminary injunction trial in February, and before the trial there is work to be done on consideration of the claims and do depositions, which will include researching if the Mirabella building was designed appropriately to handle outside noise.
In a statement, the city of Tempe said city officials have worked with both the residents of the Mirabella and Shady Park to address concerns.
“Earlier this year, concerns were raised by Mirabella residents about the noise level from Shady Park on weekends,” the city’s statement read in part. “As live music events have resumed during the pandemic, these concerns became more frequent. Tempe has worked with both the residents and Shady Park’s owner throughout this time, and Shady Park received a city permit to build a new structure over its outdoor area in an effort to mitigate noise. It is the right of any party that feels aggrieved to seek judicial relief and that is what is occurring now through Mirabella residents’ motion to get the sound levels turned down.”
The city’s statement goes on to say city leadership believes a “peaceful co-existence can be achieved” between Shady Park and the Mirabella residents.
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