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. Once the Austin Music Center is forced to move due to The Westin’s law suit, The Westin will sue them again for loss of revenue due to the many guests leaving to be closer to the new Austin Music Center. Then a subsequent law suit for emotional damages to the management of the Westin and finally The Westin will move to a location adjacent to the new Austin Music Center and then…

  2. I’m confused, in my city, the city council has the final say on new development. Even if it’s a dude just doing a major tear down on his own house. And the people in the neighborhood can come to the meeting and voice their opinions. Doesn’t the city ever put 2 and 2 together? And hold some responsibility?
    Like advising the hotel they are responsible for making it soundproof, cause the music venue is a city Icon? And the reason Del Webb got the land at 1/2 price is because its next to a feed lot? Doesn’t anybody have to take responsibility anymore?
    Because it sounds like the court is like an insane King Solomon and actually trying to divide the baby.

    1. I’m less confused. In my city, the city council is on the take. Who ever has money to throw around can come in and pretty much do anything unless it affects a member of the council itself and even then it’s usually just a matter of “mo money.”

  3. Breaking News!!! Obama Administration now says the Intelligence Community has unanimously concluded that China hacked the DNC!


    Or is it Russia after all? Or is it really China? The mystery continues. Nobody can say for sure when there’s no evidence about any hacking at all.

    However, the Obama Administration’s best bet is to launch nuclear bombs on both Russia and China before his Administration closes up shop. Since the Obama Adminsitration has tried its very best to screw up America and the World, it might as well go all out.

      1. Is it possible you don’t like Obama?

        What’s not to like? Obama, with the help of the Democrats, is claiming Presidential authority to shut down any web site he wants via what amounts to a Ministry of Truth. Trump is no fool. He’s not about to look such a splendid gift horse in the mouth…

        1. Brooklin Bridge – it appears that members of OUR government did a denial of service attack on The Drudge Report and had them down for 90 minutes yesterday right when they were announcing the sanctions on Russia. So, what’s not to like about Obama?

          1. If you think I actually praise Obama, Paul, turn up your Snark-0-Meter a tad. I couldn’t agree with you more; it’s horrifying.

            For me, this isn’t about which party is better or worse. My assumption is that they they are both utterly beyond repair and their unification (bipartisan vote) on this Ministry of Truth bill proves it.

            Congress has taken up the issue [fake news, Russian hacking] and written a provision into the 2017 National Defense Authorization Act, which will create a “Global Engagement Center” to “recognize, understand, expose, and counter … propaganda and disinformation”.


            Note that Global Engagement Center is spelled, “M-i-n-i-s-t-r-y O-f T-r-u-t-h,” and both sides of the isle are in favor…

            “While today’s action [expelling Russian diplomats as part of the “ministry of truth” initiative] by the administration is overdue,” House speaker Paul Ryan said in a statement, “it is an appropriate way to end eight years of failed policy with Russia. And it serves as a prime example of this administration’s ineffective foreign policy that has left America weaker in the eyes of the world.”

            In other words, you can always count on the Republicans to parrot the view we need to be tougher on Russia or for that matter, on [fill in the blank].

            That is, a non failed policy would be a “GET TOUGH” policy.

            Like I say, Paul, both parties are full on nuts and it’s going to be very difficult for Trump, with his “Make America Great Again” logo, to resist the insanity of escalation with a major nuclear power.

            Obviously, a side benefit Trump is perfectly aware of (he is no fool) is that our long awaited “Ministry of Truth” can turn it’s charms on web sites and news outlets within our country just as much as without.

            1. Brooklin Bridge – The Guardian got caught with a Fake News article they wrote yesterday about Julian Assange. According to the article he supported Donald Trump, in reality his is taking a neutral stand. We cannot forget that this was one of the papers that got the first Wikileak drops. I don’t think they will be getting another one for awhile.

              1. Thanks Paul, yes, I read about it on the Intercept.

                As Greenwald points out,

                The purpose of this article is to underscore, yet again, that those who most flamboyantly denounce Fake News, and want Facebook and other tech giants to suppress content in the name of combating it, are often the most aggressive and self-serving perpetrators of it.


                Putin’s response to Obama’s (the lame quack) expelling of diplomats looks like this,

                  1. Brooklin Bridge – do you think Obama was ever in a real fist fight in his life?

                    1. Don’t know. I suppose ironically, some knowledge of martial arts might help a President avoid the need for cold -> hot wars. That to me would be the goal: avoid war between super powers at all costs, it’s absurdly expensive and existentially dangerous. It puts the fate of the whole world in the hands of two human individuals with all their personal weaknesses and foibles. Russian roulette. Sheer insanity.

                      The comic strip makes a point about strategy; Putin is besting Obama at his own game of strategy and turning Obama’s own moves against him.

                      If Trump actually manages to put his strategy of strengthening financial ties with Russia into effect, he will have put Putin on a wrestling mat that is much more favorable to the US. Russia could also benefit, but I suspect it would do so far less than U.S. corporations and would actually end up considerably weaker and in far more in debt to U.S. banks and financial institutions of credit. When these debts became high enough, US banks etc. would move in with the usual demands for Russia to impose austerity and to sell off national assets to repay said debts. This is exactly what happened when the U.S.S.R. broke up. That in turn would weaken Putin considerably. Austerity, where Putin cuts back on social services to repay foreign debt would make him far less popular, for instance, as would the sale of national assets. I think Putin is much more vulnerable to such a strategy than he is to being encircled by Nato and having economic sanctions applied that simply force him to do what he should have done in the first place; strengthen relations with other countries such as China, and that get the Russian population to back Putin against the external US bad guys who are imposing economic hardship and raiding Russian assets.

                      Obama is perhaps aware of this and of the potential for Trump to become even greater than Regan in his foreign successes where Obama failed miserably trying to fence in the Bear. That is why Obama is trying to tie Trumps hands with the beginnings of a cold war with Russia.

                    2. You have brought up a key point that most miss. War is often described as an extension of politics and sometimes vice versa. The reasons for war however are always economic. That’s three key areas that must be understood in depth. Never mind historical antecedents, cultures, and of course philosophy.

                      A background as a community organizer with a shaky episode teaching something he demonstrated he knew nothing about ended up with eight years of war, at great cost with nothing accomplished. Lack of knowledge in the other areas led him to be led by the nose by those who did understand those and other disciplijnes. I’m excluding for the most part politicians, the media , and educators of course.

                      True Trump has minimal training in the arts and techniques of warfare. His forte’ is business. But he is not lacking in knowing how to choose a board of directors that are skilled. Nor is he, unlike his predecessor, devoid of leadership, management, administration and leadership skills.

                      Finally to bring the politicians back into the conversation he is conversant with the primary legal document that governs the country.

                      One can say with some truth that after six years in the Senate and the State Senate (Did he complete those?) and eight years in the oval office Obama is still unprepared for the job.

                      Playing golf unlike playing chess is not a genre for producing leaders at the highest levels. It is a place to hold business meetings. Nothing more especially when he couldn’t reach par on any course..

                    3. Michael Aarethun – I am sure that Trump has read Sun Tzu since most of the businessmen he works with will have read it. He probably has a copy in his coat. If you know Sun Tzu, you know The Art of War.

                    4. the external US bad guys who are imposing economic hardship and raiding Russian assets.
                      the external U.S. bad guys who are imposing economic hardship (sanctions) and trying to encircle their country with military might.

      2. In other words, this is Obama and his priceless Democrat sycophants’ way of making it impossibly tempting for Trump to start out his administration with a huge thorn in stuck in Russia’s side. If Trump wants this extraordinary gift of a Ministry Of Truth (in a country where that would have been virtually impossible for the last near 300 years) at absolutely no political cost from his base (because it was dropped in his lap by a Democrat administration), he need only continue the policy of shutting down Russian web sites in order to be able to shut down any web sites.

        On the other hand, taking this mouth watering bait would make it near impossible for Trump to exploit his idea of rapprochement with Russia, since they – with damned good reason – are not going to be thrilled one little bit by having their news sites and other propaganda outlets shut down. Natch, they will retaliate and you will then get the usual suspects here and elsewhere howling to bomb them into the stone age…

        What a parting gift! Will Trump be able to resist? Tune in in three weeks for the next installment of this homo-drama, “As The World Collapses… .”

        1. Needless to say, it’s not only the Democrat sycophants in Congress, the Republicans are all over this idea and their only complaint is accusing Obama of not doing it sooner and more thoroughly…

  4. Just one other option. Modern sound systems are A-flamin-mazing. It is quite possible to configure them so that the sound is contained within any area you desire.

    Now I believe the problem lies with the hotel, but that is just my moral and ethical assessment and may well not hold up under law, so what I’m suggesting is that it may well be cheaper for the hotel to pony up for a new sound system at the venue – or some agreed part thereof – rather than upgrading soundproofing of their building.

    We had the situation here where a block of apartments was built directly over the road from the oldest pub in the city and then complained of the noise. They won which , as you can see, I consider a travesty.

  5. Westin needs to pay for enhancing the acoustical barriers possible on both properties. Sound is energy and it travels until dissipated. If there is space between the two buildings the sound can be absorbed or softened. The base is hard to lower but the surfaces of the walls can be addressed and foliage planted in between the buildings. Acoustical engineers do this sort of thing all the time, people installing wood floors in condos, etc.

    Westin screwed up. It would have been easier, cheaper, and more effective to mitigate the sound problems during construction. However, with some judges and given the incredible ability to argue by lawyers, Westin could be the nuisance that wins, something.

  6. I have been in a lot of musical venues and although I do not normally go to the likes of KORN, I have never been to a venue were you could hear the music outside the building. I am wondering if they don’t share sympathetic walls.

    1. It might be helpful to read the article.

      […]The company built a large hotel right next to the Nook Amphitheater — a huge draw in the city for music[…]

      If you follow the link, the first sentence is, The Nook Amphitheater is an all-outdoor music amphitheater located in the heart of Historic Sixth Street in the Live music capital of the world.

        1. No sweat Paul, I shouldn’t crow – I make that sort of mistake all the time. 🙂

      1. I guess retrofitting the “amphitheater” with soundproofing wouldn’t be a viable answer after all.

  7. Some neighbors near the hotel who own their own homes need to join in the suit and file a claim for injunctive relief against the hotel for all the traffic, ugly signs, noisy customers. This is The Worst Westin.

  8. The customers of the music venue should be made aware of the Westin threats to their fine music venue. A “Beans Two Cents A Quart” event should be held. All the customers should go visit the Westin after their bean eating contest and after their concert when the beans have taken effect and let out some noisy and stinky air.

    The Westin should go east. Frig em. Those who dive in the swamp cannot complain of gators. No gator aid in this case. The noise spoke for itself when the hotel company came to look over the property. Res ipsa locatur and the judge would be immature if he/she gave the Westin some injunctive relief. Or declaratory relief. I am boycotting the Westin chain out of deference to music.

  9. Very interesting case. If common sense and justice prevails–which is too often not the case when it comes to the law–the Nook Amphitheater should prevail over the Westin. If the Nook wasn’t considered to be a “nuisance” during its years at its current location, then it does not transform into a “nuisance” merely by virtue of the Westin’s decision to locate next to it.

    Furthermore, prior to building the hotel, the Westin could have (and should have) easily forseen that the sound coming from the Nook would be heard by the Westin’s guests if the Westin chose to use conventional building materials. So the Westin’s owners knowingly created the very problem for which they are now seeking a “remedy” for from the Nook.

    Under these circumstances, if the Westin chose to build next to the Nook, the owners faced two choices and only two choices: (1) use top-quality, but expensive, soundproofing materials and construction; or (2) use cheaper conventional building materials and bear the risk that the hotel’s patrons will be dissatisfied with the noise level. The Westin’s owners knowingly chose option 2. Thus, Westin’s owners should bear the consequences of their own actions.

    Now, some may question how a hotel could be built to be soundproofed. Soundproofing construction has been around for a long time, and it is very effective. But a first-rate soundproofing of a hotel under these particular circumstances would have been expensive.

    I’ve been to Jimi Hendrix’s Electric Ladyland recording studio on 8th Street in Greenwich Village in downtown New York City. Jimi had the studio built to the highest quality specifications in 1970. No cost was spared to ensure that everything, top to bottom, was of the highest quality. Inside the sound rooms, the music is very loud and you will most definitely hear “chest thumping bass.” In fact, I would more accurately characterize the bass as “ball-shaking.” Yet, outside those immediate sound rooms, there is virtual silence. And out on 8th Street, you hear nothing at all coming from the recording studio. There are merchants located to the left and right of Electric Ladyland studios, and they too hear nothing as well. Nobody would know that celebrated performers were recording there at high volume and often with “ball-shaking bass,” such as Steve Winwood, Eric Clapton, Ron Wood, Patti Smith, Leslie West, The Rolling Stones, Led Zeppelin, Stevie Wonder, David Bowie, The Arcs, Lana Del Rey, The Kills, Daft Punk, Beck, Ryan Adams, and Adele.

    Well, the same soundproofing principles can be applied to the construction of a building to keep loud music or noise out, as well as to keep it inside. So, if the Westin’s owners chose to build the hotel without using the more expensive construction materials and procedures, then those owners should bear the easily foreseeable risk.

    The following are some of the materials and procedures involved in soundproofing a hotel, but these are just some of the basic ones that the Westin likely failed to employ.

    Floors – For a wood built structure. Use two Subfloors during framing (on the deck, before framing of the walls begin) with Green Glue Damping Compound applied between the 2 layers. This is one of the best techniques you can do for controlling sound between floors.

    Ceilings – On The ceiling below use resilient sound clips like Whisper Clips with Hat Channel and hang 2 layers of drywall on the channels, adding another layer of Green Glue between these 2 layers.

    Walls between rooms/hallways – Consider framing a double wall (completely not touching each other) between all rooms. If cost or space is an issue than use resilient sound clips on one side of the wall. Cover all outlets with an acoustical pad. Fill the cavity with Thick Fiberglass insulation, use 2 layers of 5/8″ thick drywall on both sides with Green Glue Damping Compound in between the layers. Seal the perimeter of the walls with acoustical caulk. (you will be spending half the money and getting a much better soundproof wall using this method).

    Walls to the outside – Insulation, double drywall with Green Glue in between.

    Doors – One of the biggest problems. Install solid core heavy doors. Seal around door frame before door moldings are installed. An Automatic Door Bottom and proper Door Gaskets is a must to stop sound from rooms to hallways.

    Windows – Install double pane windows with laminate glass. Windows should be sealed properly before moldings are put up. For example, the following vendor provides window solutions to soundproofing: http://www.soundproofwindows.com/

    1. Why not let the Judge suggest (require) the hotel to retrofit soundproofing in the concert hall? They caused the problem by building next to the hall, they could add the same construction and materials that make a recording studio silent to the outside world.

      1. Tyger – part of the draw of the NOOK is that is bare brick and steel, having burned down once before. Adding sound-proofing to the Nook, would be unacceptable.

  10. We had to pass some laws to protect the few clubs we have left in San Francisco from that sort of action. Now we are losing them due to high rents and other economic pressures. Pretty soon all the artists will be heading for the hills, giving up on this overpriced city life that is plaguing our nation. I do like the above suggestion. One needs humor to get through the mire.

  11. This story does not strike a chord with me. It reminds me of the story of the hotel guest who complained to hotel Management about the fact that, every time he put on his hat while he was in his hotel room, he heard loud music in his ears. After investigating the situation, Management told the guest that music was coming from the hat band.

  12. An argument could be raised that the hotel failed to construct the building with sufficient sound-proofing material, such as better windows, wall insulation and without smooth, hard surfaces that reflect noise toward guest rooms while knowing full well that a noise producing business was operating nearby. That could be a substantial dollar amount toward contributory negligence.

    Yet, I suspect the music venue could do more to abate the bass nuisance. Lower sound frequencies travel further through the atmosphere. That would be an easy workaround, though I suspect that is an attribute customers of their business historically expects to be manifest with certain genres.

    As an aside, several years ago I stayed at a hotel in D.C and had a bad experience with noise. During my check-in extraordinarily loud mariachi music thundered from a conference room below–appallingly so. In fact, the sound expressed such resonance, I could differentiate each note as vibration through the pen as I signed my name on the registration card.

    I complained to the desk clerk that the noise was terribly loud and certain to degrade everyone else’s stay. She actually dismissed my suggestion, claiming nonchalantly that it was “just a quinceañera” and to her of no concern. The music did cease before I retired for the evening and I felt justified in filing a complaint with corporate, but when an operator of a location acts with such abandon, a more fitting end-game would be for corporate not to know the problem, and wonder why business is dropping. Besides, certainly other customers had a different approach to the problem.

    1. In San Jose you can end up next to an airport. The sounds of jets screaming overhead makes a rock concert sound like a babbling brook. The folks who were living in the path of the planes just had to eat it. What is truly amazing is how the bright lights from Levis Stadium confuse the pilots landing at San Jose airport. That is just a disaster waiting to happen. It seems that there is no real sense at work on designing these new cities. How can you think building a stadium with bright lights near an airport is a good idea? Unless of course you own the land, and then you can ignore that completely.

      1. zRants: I think you’re onto it, although no one apparently spoke up about the devaluation of property in the flight path of San Jose’s airport when just compensation under the 5th Amendment’s Takings Clause was in order. Or, perhaps compensation was paid?

        San Diego’s Lindbergh Field has heavily devalued the century-old residential properties under the flight path. About 18 or so years ago, there was a big push to construct an additional two runways (Lindbergh only has one) to planes landing every 30 seconds, 24/7, as opposed to expanding Brown Field or putting in a new airport near the border. Luckily, reasonable minds won (although no expansion took place anywhere), but imagine how property values would have plummeted near Lindbergh had the measure passed. Even with one runway, I’m reminded every morning at 4:30AM when FedEx’s huge cargo hauler comes in as the first landing of the day.

        One thing that’s distinguishable here is that this isn’t a legislated taking but a judicial intervention in the form of a request for a injunction. Just the same, if the court grants the injunction which provably devalues the Nook Amphitheater through loss of revenue, then government also harmed Nook through regulation in the form of an injunction. Along with Westin, shouldn’t government reasonably compensate the music venue for any loss suffered by the injunction? In other words, should regulation in the form of a legislative taking and a judicial taking under these circumstances differ under the Takings Clause?

        Just a thought.

        1. Steve:
          My experience with Newark {Liberty International now} Airport was quite opposite of yours. No night flights, so 1st flight in every day is at 5:00 AM. I lived 30 miles away, but right under the Glide Slope. Was the perfect alarm clock and on-time every morning.

    2. The hotel was worth X, says the noise makes them worth X-n. The music venue says it will cost them Z to relocate plus D loss of business.

      Judge should let the music venue that was there first buy out the hotel for somewhere between X-n and X-n-Z-D.

  13. The Westin should cut its losses and fire those who were responsible for purchasing and developing this property–which was to be utilized as a hotel–even though it was known to be located adjacent to an f’ing amphitheater. Sell the hotel to a school for the deaf and eat the losses. Problem solved.

  14. I would tell the hotel that they would have to put up a wall between the hotel and the Nook, and have it covered with accoustic tile or some other noise-diminishing material, and they would have to pay for it, if they didn’t like the noise which was already there before they built the hotel.

  15. …or people who buy a house next to a farm, and then complain about the smell of manure.

  16. Who came first, the nuisance or the nuisanced, is irrelevant. It’s a question of environmental justice.

    When it’s not only a question of justice but a question of the environment as well, justice demands that the environment takes precedence, not only for environmental reasons, but for reasons of justice as well.

    Turley is so obtuse sometimes. It’s amazing anyone takes him seriously. Fortunately, nobody I know does.

    1. Mr. Van Dyke,

      Obviously, you take Prof. Turley seriously. You would not have read and responded to this post if you did not take him seriously.

      It is not justice, environmental or otherwise, to make a business choice (like locating a hotel) which turns out to be a bad business choice for reasons not the fault of neighbors of the business and then expect the neighbors of the business to bear the burden of the faulty business choice.

      Either Westin made a bad business decision on where to put its hotel or Westin intentionally figured it was cheaper to build a hotel with inferior materials and incur litigation costs against the venue than to soundproof its hotel or locate it in a different place. That was Westin’s decision. No one else should bear the brunt of that decision.

      1. Vince Jankoski – I would think that Westin’s proximity to the venue is helping their revenue stream. Are they willing to cut this off, too?

  17. Sounds like those dimwit retards who move in next to an airfield built way out in the country thenm bitch about the same thing. Stupid is as Stupid does.

  18. I’m certainly no lawyer, but undoubtedly the Hotelier knew what they were getting into when they developed the property. No injunction.

    1. What if the Hotelier developed/built during the winter (assuming Austin has a winter) or off-season, when an Amphitheater is typically closed? No noise then, or reduced noise due to thicker air, shortened attendance times, less attendance, fewer shows, etc.

      I can’t imagine the law required the Amphitheater to announce it presence to new neighbors, and, unfortunately, not everyone does the research they should before getting involved with something.

      BTW, I’m on the side of Amphitheater. It was there first.

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