The show does go on at the Orpheum as the theater, Holocaust museum reach uneasy truce over joint alley that is the main way into the venue

A judge has declined to order the Holocaust museum under construction on Tremont Street to let the Orpheum Theatre take over complete control of the alley that is the venue's main entrance while the two wrangle in court, because workers on the ground for both sides have arranged a truce that leaves enough of the alley clear for performers' trucks and then patrons to get into shows so far.

In a ruling last week, Land Court Judge Kevin Smith agreed with the Orpheum it has proven it's used the alley, known as Hamilton Place, for at least 20 years on show nights, enough to grant it a "prescriptive easement" to keep using the alley. But at the same time, he said that doesn't mean it has the right to completely take over the entire space on the days of performances, which would give it more rights to the land than the museum, which owns a stretch along one side of the alley, and which could force the museum's construction to a crawl.

Last month, the Orpheum - which opened in 1852 - sued the Holocaust Legacy Foundation to continue letting performers' trucks unload and load up in the alley on the day of a performance and to then use the alley as a place for patrons to queue to go inside. This includes parking a vehicle at the alley's entrance "to prevent any vehicle from accelerating down Hamilton Place and striking people in the alley," according to the theater's security director.

Smith noted that the first two shows of the Orpheum's fall season went off fine, because museum construction workers agreed to keep at least a ten-foot-wide strip of the alley clear for wide loads - and to mark off their work zone with temporary fencing rather than Jersey barriers, as the foundation, founded by Jody Kipnis and Todd Ruderman, works to replace a four-story office building with a six-story museum that will include an actual Nazi boxcar used to transport Jews to death camps.

So while the litigation continues, there's no need for him to issue the preliminary injunction the Orpheum originally sought, Smith wrote:

The balance of harms at this early stage tips in favor of the Foundation. If the court were to issue the injunction requested by Crossroads, the Foundation's construction operations would have to be suspended for a day or two every time the Orpheum Theatre hosted a show. Not only would that impose the extraordinary cost of shutting down and remobilizing construction every week or so, but it could have the domino effect of causing construction delays, extending the construction schedule, and adding unnecessary costs of delay to the project. On the flip side, denial of the injunction will not cause harm to Crossroads to the extent that it predicts. As previously stated, the parties have proven that they can work together so that the Orpheum Theatre can hold live music shows and the Foundation can continue the construction of its museum – even if that cooperation came from the workers on the ground on each concert day and not through a written agreement between the powers that be for each entity. If that cooperation continues for the remaining 18 or so music shows currently on the Orpheum Theatre schedule, half of which will occur on a Saturday or Sunday night, neither party will be harmed in a way that justifies the court's intervention.

He continued he hoped the comity could continue and that the two sides could come to a more permanent agreement:

Both parties in this case have a lot at stake. However, the evidence submitted to the court suggests that they both can achieve their desired goals without the court’s imposition of an injunction that would undoubtedly be inadequate to coordinate the day-to-day operations of a major construction project with the running of a storied live music venue that holds shows on 40 to 50 nights a year. Although the court will not issue the injunction as requested by Crossroads, it must be emphasized that Crossroads will likely be able to prove at trial that it has an easement of passage over Hamilton Place that is wide enough to accommodate the large vehicles and the scores of patrons that have used the way each time the Orpheum Theatre has hosted an event in the past.