Westin Builds Hotel Next To Austin Music Center . . . Then Charges That Music Is A Nuisance

thth-1There is an interesting case out of Austin Texas that raises the now defunct “coming to the nuisance” doctrine.  There was a time that a defendant could move to dismiss a nuisance case on the basis that the plaintiff moved to the existing nuisance only to challenge it in court.  That doctrine fell into disfavor, but there continue to be cases where the underlying rationale seems compelling. Take the Westin in Austin.  The company built a large hotel right next to the  Nook Amphitheater — a huge draw in the city for music.  The hotel then objected to . . . you guessed it . . . the music.  The hotel is seeking to enjoin the music as harming their business.

The doctrine originated in early common law with cases like Rex v. Cross, 172 Eng. Rep. 219 (1826).  The Court held:

if a certain noxious trade is already established in a place remote from habitations and public roads, and persons afterwards come and build houses within the reach of its noxious effects; or if a public road be made so near to it that the carrying on of the trade becomes a nuisance to the persons using the road; in those cases the party would be entitled to continue his trade, because his trade was legal before the erection of the houses in the one case, and the making of the road in the other. 

American courts found the doctrine to hinder growth and work against the common good, particularly as populations in cities expanded into rural areas.  Of course this is a case of a hotel moving to a popular music area and then objecting to the music.  The hotel says that guests cannot sleep late at night, even though the location itself is clearly a draw for guests.  The complaint states that the Nook plays “chest thumping bass” seven nights a week until 2 a.m. — making some rooms uninhabitable.  However, the Nook has a permit to play during those hours and insists that it stays within noise ordinances.

Coming to the nuisance is no longer a per se defense but it can be a factor considered in the determination of whether an activity constitutes a nuisance.

The result can be a creative form of injunction as in the case of Spur Industries, Inc. v. Del E. Webb Dev. Co., where Del Webb built a housing development next to one of the largest feed lots.  Owned by Spur Industries in a long-standing cattle area of Arizona, the lot obviously produced odors and other unpleasant byproducts.   Del Webb sued the lot as a public nuisance.  The court had to conclude that the long-standing business did meet the definition of a nuisance.  Yet, the Court noted that “in addition to protecting the public interest, however, courts of equity are concerned with protecting the operator of a lawfully, albeit noxious, business from the result of a knowing and willful encroachment by others near his business.”  The Court noted that it did “not equitably or legally follow … that Webb, being entitled to the injunction, is then free of any liability to Spur if Webb has in fact been the cause of the damage Spur has sustained.” Thus, “it does not seem harsh to require a developer, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop … to indemnify those who are forced to leave as a result.”  As a result, the lot was forced to move but Del Webb would have to indemnify Spur Industries for the damages sustained in relocating the feedlot.

Such a solution could be applied in the case of the Nook which could suffer a loss of business from an injunction.  Yet, if the Nook is complying noise ordinances, the question is whether the activity is a nuisance — and whether (if it is a nuisance) the court should enjoin the activity.

What do you think?

115 thoughts on “Westin Builds Hotel Next To Austin Music Center . . . Then Charges That Music Is A Nuisance

  1. If the court decison doesn’t involve the question “Well, what did you THINK was going to happen when you built next to an all-outdoor music amphitheater, Westin?

    So Westin knowingly built in a town -next to an amphitheater- with this sound ordinance:

    “1) Austin Noise Ordinance – Chapter 9-2 Noise and Amplified Sound
    § 9-2-4 RESTRICTION ON DECIBEL LEVEL.
    A person may not operate sound equipment at a business that produces sound:
    (1) in excess of 85 decibels between 10:00 a.m. and 2:00 a.m., as measured at the
    property line of the business; or
    (2) is audible at the property line of the business between 2:00 a.m. and 10:00 a.m.”

    • Great picture. As one lawyer once told me, “If you have money or power, you have justice. If you have money and power, you have the whole rule of law. If you have neither, well, why are you talking to me?”

      • The only thing my lawyer didn’t capture in his statement, which your picture does beautifully, is that those attributes, money and/or power can be relative.

  2. How do you shake a baseball stadium? The Wall of Sound.

    1. 89 300-watt solid-state and three 350-watt vacuum tube amplifiers generating a total of 26,400 watts of audio power. 604 speakers total.
    2. 586 JBL speakers and 54 Electrovoice tweeters powered by 48 McIntosh MC-2300 Amps (48 X 600 = 28,800 Watts of continuous (RMS) power).

    This system projected high-quality playback at six hundred feet with an acceptable sound projected for a quarter mile, at which point wind interference degraded it. The Wall of Sound was the first large-scale line array used in modern sound reinforcement systems, although it was not called a line array at the time. The Wall of Sound was the perhaps the second-largest non-permanent sound system ever built.

    • In developed areas, such as New England, it’s Farms. Developers make giant housing tracts right next to a farm(s) and then initiate a town meeting to curb the farmer(s) from any activity that results in odors or noise or inconvenience of any sort (animals, tractors, what ever). If the town meeting ends up in the farmers’ favor, the developers simply start the whole process over again with a new Town Meeting.

      It’s the market place of money. The one with more of it has more market place.

  3. Since the Nook was there first and operates within permitted boundaries, it should stay. My prediction: the Nook will be forced to move, as a result of the this lawsuit or because the noise ordinance will be changed such that it can no longer operate as it has. Big guys always win.

  4. bettykath, I have family in Austin. If this were some other city you might be right. But Austin LOVES its music and I would bet on the Nook getting both popular and political support.

  5. Developers and billionaires make the laws and the judges. It is really sad to see that Westin was so sure of its power that it built a multi million $ project and then sued! Not a surprise.

    If they win, it will only confirm that he who has the money rules.

  6. All the hotel has to do is prominently displays a sign behind its front desk encouraging visitors to enjoy a night of great music at The Nook during their stay, conveniently located mere steps away, where music is played at 85 decibels or less until 2:00am.

    The Nook gets to do what it’s been doing, the hotel has “warned” its guests about the loud music nuisance, and the guest acknowledges when he signs the document at check in during registration that he was aware of “nuisance”. Problem solved.

    Except it is so simple and obvious I’m sure it’s been tried and hasn’t worked. My guess is the coddled hotel guests complain anyway.

    • Not every guest booking a room at this particular hotel realizes, in advance, that reserving a room at this specific location guarantees loud music and reverberating accommodations until 2:00 am. You do realize, don’t you, that individuals wishing to retire by 10:00 pm and seeking to enjoy their respective rooms in peace and quiet, regardless of the hour, are not simply, as you put it, coddled guests. The onus should not be placed upon the unsuspecting guests–it should, instead, be placed upon the corporation, itself, in seeking to build a hotel adjacent to an amphitheater. That was its choice. I can only assume that the land, located next to this amphitheater, was cheap and plentiful and that those factors played a significant part in the purchase and development of the property. That, of course, combined with what I can only assume was a night or two of being plied with booze and broads, which, most probably, convinced those responsible for this purchase and development to sign on the dotted line and proceed with this ill-conceived hotel placement. The guests, however, are not the ones to be blamed. Instead, until this situation is resolved, each and every guest, upon entering this establishment, should be accorded the opportunity to stay at another Westin property, in the vicinity, with all transportation to said alternate property provided by the Westin, free of charge. Those who wish to enjoy the sounds, emanating from the amphitheater until 2:00 am may do so. Those who do not wish the free entertainment shouldn’t be penalized for choosing the wrong Westin location.

      • The land the Westin built on near 6th st, is neither cheap not plentiful.

        However it seems to me that it is Westin Hotels that is completely at fault and responsible here. In choosing to build on this location (or anywhere in the vicinity of the 6th street entertainment district in order to take advantage of the popularity of the scene on 6th st), knowing that the music was audible, being able to afford a sound meter, and knowing the operating hours of the Nook, they negligently failed to mitigate the nuisance by constructing a building with reasonable sound proofing for their guest rooms. That isn’t rocket science, and their lawsuit (IMHO) is misdirected at The Nook when it should be directed at.the malfeasance of the architectural firm which designed their building without said adequate soundproofing.

        In no way shape or form should The Nook be required to pay for the Westin’s or their architects negligence. Too bad retrofitting the building will be ridiculously expensive – but that should be their sole remedy for the problem at hand.

  7. I’ve been trying to get an image file to print using the format (and location data)

    <a href=”http://www.moonofalabama.org”><img src=”http://www.moonofalabama.org/images5/putinjudoobama-s.jpg”/></a>

    And it’s not working. Anyone have any ideas?

    • Interestingly, the comment editor, takes the link itself, as you just did, and converts it into something quite like what I suggested above. But if we specify the full syntax, it won’t accept it because it can not take a nested html statement (the <img src=”url/filename.jpg” />) inside a link statement.

  8. This is similar to residents complaining about airplane noise when they buy or build a house near an airport. Logic and reason would suggest that they have no cause for complaint since the airport was there long before the complainers were. Given our political and judicial system, that is a doubtful outcome. My money is on the big boy on the block, though since it is Austin and it is weird that may not happen.

  9. Welcome to the life of equestrians.

    It is depressingly common for non horse people to buy property in an equestrian community, and then immediately begin filing nuisance complaints about the noise of whinnying or braying, the dust from arenas, or the smell of manure. Eventually, they take over the equestrian community, get it rezoned, and force them out. Horses have been driven from much of CA by that method, in addition to the spiraling cost of land and taxes making it to unaffordable to keep them in any method outside of a 12X12 tiny stall.

    • People seem to want the Disney version of life:

      Seeing horses without their being actual, well, horses.

      Night life, until 9:30 PM.

      Bucolic pastoral settings in the country, but without actual farming or wildlife or neighbors doing what they want.

      Neutered non-shedding barkless dogs (i.e., near-cats).

      Little boys, but only if they dress and act like girls.

      Sex without any risk, even hurt feelings.

      Religion without sin or hell, just acceptance and forgiveness.

        • And you know this as a fact — or have you just read something, somewhere?

          I suspect you know this as a fact — one of your very few.

            • Again, another PS post without substantiation.

              I was referring to your notice, and initial statement of such — which suggests proclivities — or are you daft?

            • Mainly because of the ‘we’, as in, “we now have sex robots and heated bionic penises.”

              Is this the royal ‘we’, or just you and we?

                • Not at all. Carry on, PS, with your observations lacking substance.

                  It’s just fun and games for me.

                  I think you a fool, much like Nick, Squeek, and a few others. Carry on, though, it’s just entertaining to draw you out and expose your lack of unsubstantiated ‘facts’ that you base many of your comments on.

                  Like your claim that it was our government hitting Drudge with a DDOS attack. Hey, maybe, who knows; but your wording was very different from what DrudgeBoy himself claimed.

                  You’re as ill-informed as the “fake news” everyone decries; as if propaganda is a new phenomena.

                  You are funny though, great laughs in you coattail posts, along with your ‘original’ ones.

                    • Thanks for your reference.

                      However, if you read the article you provided you would read that the claim of government causing the “Drudge Outage” is conjecture, which even DrudgeBoy states.

                      You assume that this perspective is true. Fine, carry on — I don’t

                      As I said earlier — who knows?

                      Obviously this is a rhetorical question. Someone knows, but to state this, as you did, on a different thread makes you as believable as any conspiracy theorist.

                      My point is that you are a fool; easily persuaded by weak thought propping you up.

                    • Jose – I have seen nothing from you but attacks. No real thought process. I have been blogging off and on for 14 hours, how about you? You on the top of your game all day?

                    • No. I only, as you put it, ‘blog’ when I’m bored. I have much better things to do in fourteen hours.

                      You give yourself too much credit, PS. Fourteen hours a day — really!!?? And this is what you can show for such an effort?

                      You are a bigger fool than I thought.

                    • Common practice of Radical Reasoning. When all else fails do a 180 and blame the opponent for lack of evidence. Recall from when I posted the Radical REasoning article they have no standards, zero morals and no shame. In short as Nick stated just pitiable monkeys never to be taken seriously.

            • Talk to the others, BBDog. The acidity has been flowing for some time, I’m tired of it too. Read more of what has passed, and understand that I see the current crop as neophytes in the needs of this country.

              Do your research, BBDog, then utter your opinions.

              • No need, I see enough…..”neophytes in the needs of this country”….what, pray tell, are your credentials rendering such judgment upon us all? it’s a blog, buddy….a blog….chill out. And, btw, we are all free to utter our opinions here, no research necessary.

    • Did it never occur to anyone there would be an objective reason the land was so cheap? Or did they make do with the subjective approach dreaming of the savings and perhaps bonuses? The project manageres etc were of course fired I’m sure if not it means never buy stock in Westin.

      • If the deal was so good did they think about moving the music venue to a better location? I’m thinking of the distance to Red Rocks in New Mexico from any meaningful centers of population or The Gorge on the Columbia River. Or even Concert In the Woods, Jefferson County, Washington.

        • And we get an answer that price of land was not a factor but location to the huge amount of human activity in the area was a driving force. Apparently those humans are not wanting for funds if they attracted Westin to build. The obvious answer now is not to sound proof rooms facing the Nook and other activities but to build balconies since that is what attracted and will attract their customer base – evidenced by their own reason for buying and building. Why would they wish to destroy that which brings in the money instead of enhancing the experience?

          I am at loss to explain the reasoning unless other evidence is presented and even then they are reminding me of some form of I want to play or I’ll take third base and go home along with the only bat and ball. Perhaps they did NOT accomplish due diligence and failed to determine the customer base they thought would bring them a fortune is not in the financial level required to afford rooms at Westin. But we don’t know.

          Notwithstanding that it’s for a jury to decide or if, and I hope not, it’s for a judge to decide which means what is the pay and play price for a verdict in their favor. Which still leaves the question if they destory the magnet where will their customers derive. Or will it be just another dreary and expensive version of Motel 6 who keeps the lights on even when they are sold out and thus is not trusted by free way drivers. Not to mention the cockroaches.

          Perhaps it’s just backlash at Hillary’s loss and they mean to tear down the whole area and build another convention area. So far as good a reason as any other than mismanage and PPPP which stands for P Poor Prior Planning.

          Either way not the problem of the 6th Street businesses unless you consider the collective of those who support whatever they support and eschew or reject the notion of property rights as the unwritten but intended part of life, liberty, (PR) and the pursuit of happiness.

          Under the new progressive philosophy that would be whatever and however the citizens were told to be happy. Justice, of the Constitutional kind would have nothing to do with it.

  10. Commenting without reading the article would lead most to side against the hotel.

    However:

    Our current challenge is not with live music, but with one nearby establishment that frequently plays recorded dance music through loudspeakers that consistently exceed the bass decibel ordinance established by the city. We have been working with this venue for more than a year on ways to make sure everybody on 6th Street has a good time. This is the only venue that refuses to follow the city’s ordinance. We have installed special soundproofing materials and taken other measures, including offering to pay for the costs of upgrading this venue’s sound system based on their own specifications. We are not asking the venue to change who they are; we are simply asking that in the wee hours of the morning, they turn the bass down on their DJ music so that all the visitors our city welcomes can enjoy all aspects of their stay.”

    So they have tried to work with the Nook. They have offered to pay to upgrade the Nook’s sound system.
    However The Nook – according to The Weston exceeds the decibel level allowed by law.

    On the face it seems like it would be rather simple matter that wouldn’t even require a lawsuit. IF the venue violates ordinances then it should be a municipal matter

    • Bernard – unless the Nook has a new or additional speaker system, the picture I saw of the Nook sound system did not seem that robust. They knew what they were moving next door to, that is a given. The had every opportunity to measure the sound levels prior to breaking ground.

      However, I do see another problem. The Nook is within city sound standards for anyone walking by, however they have no roof. With the sound being sucked up and not buffered by brick walls, bodies and tables, they may well be over the limit. Now the question is, which limit is applicable.

  11. Hard to belive that The Nook is in violation of the noise ordinance. In any case that can be objectively checked and doesn’t require a law suit.

    Don’t think much of Westin management; wouldn’t stay in one.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s