The Westin files lawsuit against downtown venue for loud music

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AUSTIN (KXAN) — Austin is touted as the live music capital of the world, ushering in visitors from all over the world.

Many choose to stay downtown close to the action, but the Westin Hotel in Austin is now suing The Nook on Sixth Street, an all-outdoor music amphitheater. The suit claims loud bass levels make rooms at the hotel “virtually uninhabitable” and cause extreme annoyance, ultimately causing economic harm.

It’s a David and Goliath situation to some. Stephen Condon, co-owner of the Nook, said, “We’ve had the same sound situation since day one. So they need to do their homework before they come in.”

Denis O’Donnell, owner of the White Horse and with Austin’s newly formed Music Venue Alliance, has helped craft what’s called the agent of change policy, which holds that the second party involved in a sound issue is responsible for mitigating the problem. “The real concern,” says O’Donnell, “would be that the Westin was successful in legal precedent in punishing this venue that was there first.”

The hotel opened in 2015, while The Nook opened in 2012.

The agent of change draft will go before the Music Commission on Monday, Jan. 9. This is the first step in the policy making its way through commissions to committees and ultimately to the city council.

“It takes smart policy and the city of Austin to really put its value on preserving what makes it special,” O’Donnell said.

The Westin says they’ve tried sound mitigation efforts, to the tune of more than $1 million, an amount they’re now suing to reclaim.

So far there have been more than 50 complaints about The Nook since October 2015, but only three resulted in a noise violation. The Westin says they don’t want the venue to change who they are, but to bring the bass down during the early morning hours.

The city put together a report in September 2015 that specifically looked into The Westin’s complaints. After monitoring sound at the Westin, the findings at the time stated there were very few, and some incorrect materials to mitigate low-frequency sound coming into the hotel.

The Austin City Council is considering extending playable hours for clubs in the nearby Red River Street district. However, complaints within a 600-foot radius of the area has doubled in the last year. In October, the city of Austin hosted a company that builds sound mitigation systems. The system would hang from the ceiling instead of face-level, giving listeners high quality while containing audio frequencies, including bass.Full statement from The Westin: 

“Our relationships with our neighbors are important. The 110,000+ guests we expect to host over the next year at The Westin Austin Downtown are absolutely going out to spend time and dollars at these venues, and they are choosing the hotel in part because of the proximity to the entertainment districts that the city is known for.

Prior to construction, we did undergo a thorough acoustical review, and there was there was a good faith effort to address noise challenges before we broke ground. Since opening, we have been taking our own measurements of noise levels, from different floors and angles to attempt to understand the noise issues. We’ve also retrofitted all rooms facing 6th Street, adding improvements to help mitigate the noise that comes from our neighbors.

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.”Full statement from Colin Laitner, The Nook’s attorney

“The Nook has enjoyed a fantastic local following since it opened its doors as a small music venue for SXSW in March of 2012. Owners Stephen Condon and JD Dunn are longtime operators in Austin and have always made every attempt to follow City laws and to respect neighbors.

When the City of Austin expressed concern about sound in late 2012, the Nook built a new fascia with sound deadening Plexiglas and it immediately solved the sound issues. The Westin built immediately behind the Nook and began legal threats regarding noise in late 2015, even though the Nook is and has been operating within legally proscribed noise levels. Stephen and JD likewise sought to cooperate with Westin management and its counsel. With hundreds of hours spent and a substantial amount of financial resources from their small business, they’ve endeavored to work with the Westin and City of Austin to find a mutually agreeable solution to address the Westin’s complaints. The Nook has done the following many times over in the last 13 months:

  • 5 different speaker configurations
  • Hired the audio engineer to reprogram their speaker system to accommodate the Westin and work directly with Westin management in such attempts.
  • Several rounds of audio engineering with the engineer who built the Nook’s speaker system.
  • Dozens of meetings with Westin staff and Westin counsel as well as city of Austin music office officials David Murray and Don Pitts, and even a team of sound engineers from five separate local sound engineering providers.
  • The vetting, engineering and demo-ing of a newly invented JBN sound system with letter of guarantee from the manufacturer of low frequency sound mitigation.

While initially encouraged by what appeared to be joint efforts to cooperate by Westin management and their first two attorneys, the Westin’s newest counsel has failed to respond to collaborative correspondence and instead filed the subject petition without alerting counsel for The Nook.

The Nook is a small business on the right side of both the Austin Music Culture as well as the Law. The Nook always complies with local sound ordinances as well as the more restrictive sound impact plans for its venue despite those plans being made more and more restructive by the City of Austin. This process has already cost the small venue considerably.

The Nook continues to seek to work with the Westin by having it contribute what is a relatively small sum (approximately $75,000) for the Westin to pay for the JBN system that has been guaranteed to solve their complaints about the Nook. Nevertheless, Mr. Condon, Mr. Dunn and counsel for the Nook look forward to their day in court should that be where this issue goes. It is entirely up to the Westin.”

The Nook launched a petition “to tell Mayor Adler and the City Council to take action — by local ordinance or otherwise — to prevent new big corporate interests from moving into a protected entertainment and music district and then usurping control over that very entertainment and music from which it seeks to profit.”

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