Mirabella v. Peacocks

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MIRABELLA AT ASU INC, et al., Plaintiffs/Appellees,

v.

PEACOCKS UNLIMITED LLC, Defendant/Appellant.

No. 1 CA-CV 22-0318
FILED 12-29-2022

Appeal from the Superior Court in Maricopa County
No. CV2021-016159
The Honorable Bradley H. Astrowsky, Judge

VACATED AND REMANDED

COUNSEL

Snell & Wilmer LLP, Phoenix
By Adam E. Lang, Andrew M. Jacobs, Eric H. Spencer,
Matt Jarvey, Derek Flint
Counsel for Plaintiffs/Appellees Mirabella

Perkins Coie LLP, Phoenix
By Jean-Jacques Cabou, Alexis E. Danneman, Matthew R. Koerner
Counsel for Plaintiffs/Appellees Kessler et al.

Zwillinger Wulkan PLC, Phoenix
By Larry Wulkan, Scott H. Zwillinger, Jennifer L. Allen
Counsel for Defendant/Appellant

MIRABELLA v. PEACOCKS
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 The superior court granted a preliminary injunction in favor
of Mirabella at ASU, Inc. (“Mirabella”) and five individual plaintiffs who
reside in Mirabella. The injunction requires Peacocks Unlimited, LLC,
(doing business as “Shady Park”) to comply with time and decibel
restrictions for its outdoor music concerts and to otherwise mitigate the
resulting noise. Shady Park asks us to reverse the superior court.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mirabella is a high-rise residential building for individuals
aged 62 or older on University Drive in the City of Tempe (“Tempe”).
Subject to a use permit, Shady Park operates a restaurant across the street
from Mirabella that hosts live music events. Shady Park began hosting
outdoor music events in 2015, the same year that Arizona State University
and Tempe selected Mirabella’s location.

¶3 During the COVID-19 pandemic, Shady Park paused outdoor
concerts. Mirabella did not open for tenants until early 2021, six years after
Shady Park began its concerts but during the concert pause. In May 2021,
four months after Mirabella opened, the concerts resumed, and many
Mirabella residents complained. That same month, Tempe discovered
Shady Park violated its use permit by selling advance tickets. In an attempt
to curtail the influx of noise complaints, Tempe agreed to allow Shady Park
to sell advance tickets if it built a canopy around the venue to contain
sound. Shady Park again halted concerts until completion of the canopy.
Concerts resumed on September 10, 2021. Despite the canopy, Mirabella
residents continued complaining about the noise to Mirabella management
and Tempe, including police.

¶4 Mirabella residents complained that the concerts interrupted
their sleep, work, study, television, and conversations. Some residents also
complained about furniture and other home items shaking during the
concerts. Residents claim they did not invite guests over on the weekends

2

MIRABELLA v. PEACOCKS
Decision of the Court

during the concerts and some residents were forced to move to other units
in the building or out of Mirabella completely. Every Mirabella resident on
the building side facing Shady Park has complained to Mirabella’s
executive director. Nearby hotels also regularly received complaints related
to Shady Park’s noise.

¶5 In some instances, police responded to the scene to address
the complaints. No police bodycam footage evidenced oppressive noise or
shaking furniture. One responding officer commented that inside a
purportedly affected residence it was “completely silent.” Another officer
detected no “unreasonable noise” on multiple response visits. And no
residents offered contemporaneous recordings confirming their experience.

¶6 After many complaints, Mirabella and five individual
residents sued Shady Park, alleging nuisance claims and violation of
Tempe’s noise ordinance.

¶7 Tempe’s noise ordinance identifies 14 factors to consider in
determining whether noise is “unnecessary, excessive or offensive.” Tempe
City Code § 20-11. These factors include: volume and intensity of noise;
whether noise is natural or unnatural noise, usual or unusual; time of day,
duration, and proximity to sleeping facilities; and population density of the
area. Id. Tempe intended the Mill Avenue district, where Shady Park and
Mirabella are located, to be a high-density, mixed-use area not subject to
residential zone noise expectations.

¶8 During a five-day evidentiary hearing, both sides called
expert acoustics witnesses. Mirabella’s expert, Michael Dickerson, testified
that Shady Park’s concerts violated most of the listed factors under Tempe’s
ordinance. And he testified that Shady Park is responsible for the rise in
decibel level at Mirabella on weekends. A DJ that performs at Shady Park
testified that additional measures to mitigate the noise level are possible,
such as adding more subwoofers and turning down the volume of the low
frequency noise. While Shady Park intended to mitigate sound when it
constructed the canopy, witness testimony indicated the canopy had “little-
to-no” impact on mitigating Shady Park’s noise.

¶9 Dickerson testified that using a measurement to set a noise
limit would “establish a baseline,” which can be used in the future to help
Shady Park conduct concerts without disturbing area residents. During the
hearing, the experts from opposing sides differed on the appropriate
decibel measurement to use. Dickerson preferred to use a decibel reading
with “C-weighting,” while Shady Park’s expert, Todd Beiler, preferred

3

MIRABELLA v. PEACOCKS
Decision of the Court

using “A-weighting.” A C-weighted decibel reading measures “equal
loudness at all frequencies,” while an A-weighting seeks to mimic what the
human ear hears. Dickerson claimed lowering the volume to 95 decibels
measured with C-weighting or 65 decibels measured with A-weighting
would mitigate the noise. Beiler argued that an A-weighted measurement
is more appropriate for the inquiry here because it more accurately shows
the loudness humans will experience. Beiler suggested 97 decibels
measured with A-weighting would be the low end for a music concert. The
court agreed that A-weighting is more useful and followed this low end of
the range when setting the injunction limit.

¶10 The superior court acknowledged that Shady Park is a music
venue important to the local community in Tempe. But this did not negate
the disruption Shady Park caused to the surrounding residential area. The
court noted that without abating the nuisance Mirabella could suffer
reputational damage. The court ultimately determined that an injunction
was necessary because Mirabella demonstrated probable success on the
merits, the possibility of irreparable injury, and that the balance of
hardships favored Mirabella. The injunction: (1) limited concerts to 7 p.m.
to 11 p.m. on Fridays and Saturdays, and 2 p.m. to 7 p.m. on Sundays; (2)
limited the decibel level as measured from Shady Park’s stage to 97 (using
the A-weighting); (3) required Shady Park to acquire additional
subwoofers; and (4) required Shady Park and all plaintiffs to reach an
agreement allowing plaintiffs to monitor the sound level.

¶11 Shady Park appealed. We have jurisdiction. A.R.S. § 12-
2101(A)(5)(b).

DISCUSSION

¶12 Shady Park asks us to vacate the injunction because: “(1) it is
overbroad and violates Shady Park’s First Amendment rights; (2) violates
principles of separation of powers and deference to other branches of
government; (3) contains legally flawed and unworkable enforcement
mechanisms; and (4) improperly seeks to remedy harms compensable by
monetary damages.”

¶13 A preliminary injunction is appropriate if plaintiffs show “(1)
a strong likelihood of success on the merits, (2) the possibility of irreparable
harm if the relief is not granted, (3) the balance of hardships favors the party
seeking injunctive relief, and (4) the public policy favors granting the
injunctive relief.” Fann v. State, 251 Ariz. 425, 432 (2021) (citations omitted).
Plaintiffs may show either “1) probable success on the merits and the

4

MIRABELLA v. PEACOCKS
Decision of the Court

possibility of irreparable injury; or 2) the presence of serious questions that
the balance of hardships tip sharply in favor of the moving party.” Id.
(cleaned up). “This is a sliding scale, not a strict balancing of factors.” Id.

¶14 We review the grant of a preliminary injunction for abuse of
discretion. TP Racing, L.L.L.P. v. Simms, 232 Ariz. 489, 492, ¶ 8 (App. 2013)
(citation omitted). “An abuse of discretion exists if the superior court
applied the incorrect substantive law or preliminary injunction standard,
based its decision on an erroneous material finding of fact, or applied the
appropriate preliminary injunction standard in a manner resulting in an
abuse of discretion.” Id. (citation omitted).

¶15 Shady Park argues that the preliminary injunction violates its
First Amendment rights because music is a protected form of expression,
and the curfew is an overly broad restriction. See Cinevision Corp. v. City of
Burbank, 745 F.2d 560, 567 (9th Cir. 1984) (“‘[L]ive entertainment, such as
musical and dramatic works, fall[s] within the First Amendment
guarantee.’”) (citation omitted). Unlike a First Amendment statutory
challenge, we engage in a “more stringent application of general First
Amendment principles” when applying the First Amendment to an
injunction restricting speech. Madsen v. Women’s Health Ctr. Inc., 512 U.S.
753, 765 (1994). Thus, in addition to such general principles, we also seek
“to ensure that the injunction was no broader than necessary to achieve its
desired goals.” Id. “Accordingly, when evaluating a content-neutral
injunction, we think that our standard time, place, and manner analysis is
not sufficiently rigorous. We must ask instead whether the challenged
provisions of the injunction burden no more speech than necessary to serve
a significant government interest.” Id.

¶16 The injunction here requires Shady Park to decrease the
decibel level of its outdoor concerts, imposes additional measures to
mitigate noise, and bans completely live music outside of certain hours.
Shady Park argues the injunction is overly broad by imposing a curfew
when Mirabella’s complaint did not request time restrictions.

¶17 We do not question the significant government interest at
issue: “the government has a substantial interest in protecting its citizens
from unwelcome noise.” Ward v. Rock Against Racism, 496 U.S. 781, 796
(1989) (cleaned up). The question we confront is whether the injunction
burdens more speech than necessary in service of that significant interest.

¶18 Mirabella contends Shady Park waived its First Amendment
argument by failing to raise the issue before the superior court’s injunction

5

MIRABELLA v. PEACOCKS
Decision of the Court

ruling. No party specifically pursued a time restriction. Mirabella asked the
court to enjoin noise exceeding the Tempe noise ordinance threshold and
above certain decibel measures. While the court briefly questioned a
witness about a “cap on time,” it later noted no pleadings included a
request to shut down live music at Shady Park; indeed, the court
specifically instructed the parties: “this case isn’t about shutting down live
music at Shady Park.”

¶19 The injunction ruling was thus the first notice to Shady Park
that it faced a complete ban on music events outside certain hours. Shady
Park raised the First Amendment argument within two weeks of the ruling
when it asked the court to stay the injunction. We do not find waiver. But
even if waiver applies, we exercise our discretion to consider Shady Park’s
First Amendment arguments. See Noriega v. Town of Miami, 243 Ariz. 320,
326, ¶ 27 (App. 2017) (waiver is a discretionary doctrine).

¶20 The superior court’s preliminary injunction burdens more
speech than necessary to abate the alleged nuisance. The injunction forbade
Shady Park from hosting concerts outside of certain times. But Mirabella’s
own expert testified that turning the volume down to 65 decibels A-
weighted would help surrounding residents. And there is nothing in the
record establishing that a complete ban on concerts during certain hours is
necessary to resolve the nuisance.

¶21 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.

CONCLUSION

¶22 The superior court’s injunction burdens more speech than
necessary to address the asserted harm. We vacate the injunction and
remand the superior court to reconsider its ruling, accounting for the First
Amendment challenge.

AMY M. WOOD • Clerk of the Court
FILED: JT
6