City’s proposed Agent of Change policy, designed to protect music venues, exempts hotels

Stephen Condon poses at his music venue the Nook Amphitheater in Downtown Austin on Friday, Dec. 30, 2016. The Westin hotel is suing the music Amphitheater for loud music. RICARDO B. BRAZZIELL/AMERICAN-STATESMAN

In an effort to protect established music venues from the pressures of new development, the City of Austin Music and Entertainment division has spent the last two years exploring the idea of using an agent of change doctrine to define the way the city handles noise issues. Modeled after a program used in San Francisco, the basic idea of agent of change is that the burden of sound-proofing falls on the new actor in any given situation. If a condo project moves in next to a music venue, it’s up to the developers to make sure their buildings are adequately sound proofed and vice versa.

Austin music scene advocates hoped that having such a policy could mitigate conflicts that have arisen as new hotels and residential developments have moved into the heart of Austin’s downtown entertainment districts. In December 2016, the Westin Hotel on Fifth Street, which opened in 2015, filed a $1 million lawsuit against neighboring Sixth Street club the Nook, seeking damages for business lost due to the late-night “chest thumping bass” the club has been cranking out since owners took over the site formerly occupied by Austin club the Black Cat Lounge in 2012.

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Noise complaints logged within a 1,500-foot radius of the Red River Cultural district, which houses popular music venues Stubb’s BBQ and the Mohawk, spiked from 43 in 2015 to 159 in 2016. Two new hotels — the Hotel Indigo and the Holiday Inn Express & Suites, Downtown and University — opened in the area last spring.

But the draft proposal for the agent of change policy that city officials unveiled this month exempts hotels.

At a meeting of the city’s Arts Commission on Monday, Alyssa Zinsser from the music office explained that hotel representatives pushed back against agent of change in stakeholder meetings, complaining of business they would lose if they were forced to adhere to the policy.

As it is, the draft policy is now a largely toothless measure. The policy states that property owners applying for business permits that include residential uses within 600 feet of a licensed music venue must “acknowledge the proximity of entertainment venues and the owner’s commitment to build accordingly to accommodate for sound.” They also must disclose proximity to a venue to renters or purchasers before selling or signing a lease contract.

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As far as any noise complaints that should arise following development, if the neighboring venue has a valid entertainment license and is operating within the parameters of the associated sound plan, the city will not consider the venue a nuisance. This doesn’t necessarily shield the venue from lawsuits, like the one filed against the Nook.

“If this music venue that’s next to you is in compliance, then they are determined that they are not a nuisance by the city’s standards. However, a music venue can still get sued for other reasons or potentially a different sound ordinance,” Zinsser explained in the meeting.

Zinsser suggested a more muscular version of the agent of change plan that might include hotels could be pushed for at a later date by the music office.

“This isn’t a cure-all, this is a start,” she said. “If we were to propose every single thing that we want to push through for this, it wouldn’t pass so we’ve got to piecemeal it unfortunately.”

Representatives from the music office have been presenting proposed policy documents at a series of public meetings. There’s another one coming up, the Design Commission: City Hall Boards and Commissions at 6 p.m. on  May 22.

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