- Deborah Sengupta Stith American-Statesman Staff
The downtown Westin hotel, which opened a year ago in Austin’s Sixth Street entertainment district, is suing a neighboring nightclub for doing what nightclubs do in downtown Austin.
The Westin, at 310 E. Fifth St., has filed a civil nuisance lawsuit against the Nook, which sits behind the hotel facing Sixth Street. The hotel wants $1 million in damages for business lost to what the lawsuit describes as “chest thumping bass” from the club’s open-air amphitheater, which hosts musicians nightly until 2 a.m.
The Nook’s owner, Stephen Condon, told the American-Statesman on Thursday that the club has been operating within its outdoor music permit, which allows amplified music until the bar closes because it is in the Sixth Street Entertainment District.
One thing that makes this latest conflict between old and new Austin notable is the degree to which both sides tried to find middle ground: The Nook reconfigured its outdoor speakers. The Westin sent over a sound expert before breaking ground to study noise levels and recommend soundproofing.
And yet both sides find themselves in discord.
The Nook moved into the space formerly occupied by the Black Cat nightclub in 2012. Condon said his club books acoustic music in the early part of the evening, live bands from 7 p.m. to 10:30 p.m. and late-night DJs who continue until 2 a.m.
The Westin opened in July 2015 and before construction, Condon said, hotel representatives sent a professional sound technician to his club to gather information. “I spent a good month with this guy showing him the sound. I even brought him up to the VIP area where the sound goes up and travels up and let him check out all of that,” he said.
“Prior to construction, we did undergo a thorough acoustical review, and there was a good faith effort to address noise challenges before we broke ground,” the hotel’s representatives said in a statement provided Thursday to the Statesman.
According to a September 2015 Austin Police Department report provided to the Statesman by the city’s Music and Entertainment Department, the club received multiple sound complaints in 2014, before the hotel opened. Following the suggestions of city representatives, the Nook built an acrylic sound wall in front of the venue, and the complaints stopped.
“As of today the Nook has only had 2 noise complaints for 2015, and those came after the Westin was completed and open,” the report said.
At the hotel’s request, an officer with the Police Department’s sound enforcement team took readings inside and outside of the hotel between 10 p.m. and 2 a.m. over a two-day period. The equipment he used measured high frequencies and low frequencies separately. His indoor readings showed that while most high frequencies were significantly lower inside the hotel, the low frequencies (the bass) were not. His conclusion: “This means the low frequencies are getting through the building because there is nearly no low frequency sound mitigating materials built into the building.”
The lawsuit alleges that while the hotel spent in excess of $1 million “fortifying the building with additional windows and drywall” to create an effective sound barrier, it “was not, and realistically, could not, be designed to mitigate the low end ‘bass’ sound waves.”
For nearly a year, representatives from the Westin met with club owners to try to reach a solution to the sound issues, both sides said. “We did like five stereo configurations; we brought in different speakers and hung them,” Condon said.
But the lawsuit counters that while the club was “periodically providing lip service to cooperation,” none of the adjustments effectively reduced noise in the hotel. According to the hotel’s statement Thursday, the club “frequently plays recorded dance music through loudspeakers that consistently exceed the bass decibel ordinance established by the city.”
Reports provided to the Statesman by the Austin police and Municipal Court show that police were called to the Nook for noise complaints over 50 times between October 2015 and November 2016. The club was cited for exceeding decibel limits twice, once in October 2015 and again in August 2016.
A December letter from the club’s lawyer to the Westin’s legal representatives, provided by Condon to the Statesman, asserts that the hotel opted to proceed with a civil nuisance complaint because it was aware that the club wasn’t in violation of any statute or noise permit.
In October, both the club and the hotel agreed to participate in a city of Austin test of a new sound mitigation technology designed by JBN Sound Ceiling of Australia. The city touted the company’s claim that its technology offered a high quality listening experience while providing “unprecedented containment of audio frequencies, including bass.”
After the test, the Nook’s owners sent a proposal to the Westin to see if the hotel would be willing to install the system, which costs roughly $75,000 and comes with a guarantee from the company, in the club, Condon said Thursday.
“We were here first. We’re in compliance. A normal person would be like, ‘OK, they should pay for it,’” Condon said. The hotel didn’t respond to the proposal, Condon said, and the next communication he received from the Westin was the lawsuit.
Westin representatives said Thursday in a statement that the hotel did respond but said the proposal didn’t address what would happen if the system didn’t work: “The hotel’s position remains the same: we are willing to purchase and install the system with the condition that if the system does not work, The Nook will turn down the bass and commit to the agreement being self-enforcing.”
For the past year, the city music office has been advocating an “Agent of Change” policy similar to one used in San Francisco. The San Francisco policy places the burden of soundproofing on the new actor in any situation. If a music venue moves in next to a residential building, it is the responsible party; if a residential building moves in next to an existing music venue, the responsibility falls on the residential building.
The Austin Music Commission plans to review a draft of an Austin version of the policy at a meeting Jan. 9.