From The “Law vs. Ethics” Files: A Westin Hotel Comes To The Nuisance


The photo says it all.

In Austin Texas, Westin  opened a large hotel next to the Nook Amphitheater, which is famous venue for live music in a city with a strong music culture  Westin is now suing the Nook because its music is disturbing the guests. The complaint states that the Nook plays “chest thumping bass” seven nights a week until 2 a.m. making some rooms uninhabitable.and thus harming the hotel’s business.

Law professor and invaluable ethics story source Jonathan Turley notes that the case recalls the now defunct “coming to the nuisance” doctrine.  The defendant in such a case once could move to dismiss a nuisance claim on grounds that the plaintiff moved next door only to challenge the activities, business and even the existence of it neighbor in court.  Turley writes,

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.  

But, Turley explains, even in the absence of the “coming to the nuisance” defense, defendants have had some support from the courts:

[I]n the case of Spur Industries, Inc. v. Del E. Webb Dev. Co., …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.

The ethics of the problem seems pretty clear. The Westin was aware that it was moving next door to a musical venue, or should have been. Presumably Austin’s music is a major reason the hotel makes sense. Turley says that the Nook has a valid permit to play until 2 AM seven days a week. It there were ever a case in which the “coming to the nuisance” doctrine should apply, this would be it. Granting the Westin’s demand would be wildly unfair, both to the amphitheater and the community.

Turley’s commenters largely take the cynical view that Westin, a multinational corporation, is counting on its wealth and power to prevail in the courts, and probably will. This comment is typical:

“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.”

Who was that commenter, Bernie Sanders? The big guys don’t always win, and in this case, they shouldn’t.


Pointer and Facts: Res Ipsa Loquitur

24 thoughts on “From The “Law vs. Ethics” Files: A Westin Hotel Comes To The Nuisance

  1. I agree. In Huntington Beach many years ago there was a nightclub called The Golden Bear that was a venue for musicians like Linda Ronstadt, Hoyt Axton, Eric Burdon, and many other well known performers. Some developer built a bunch of condos right next to the place and it was forced to close down because of noise issues. A sad day for me and many other OC folks.

  2. “Who was that commenter, Bernie Sanders? The big guys don’t always win, and in this case, they shouldn’t.”

    Please tell me you’re kidding. Not everyone who hates big corporations is a socialist. Disliking the way a culture of business operates and believing it does so immorally (or at the detriment of society) are two entirely different things. Corporations promote comformity, groupthink, and reduce originality. That said, they’re legal and (if operated well) ethical, so my hate extends no further.

    Also, “always” in such contexts aren’t meant to be taken literally and “big guys” is a catch all for any “power that is.” In other words, you wanted an excuse to condescend towards Bernie supporters. Bravo.

      • Jack,

        They do “always win” (always, as mentioned before, is hyperbole). That’s why they’re the dominant form of business organization in today’s economy. My point is, like the left, you’re more and more caught up in the words trap fallacy that everything has a dual meaning. “Inner city” means “black;” “talking points” means “partisan rhetoric,” “empathy” means “socialism,” etc. Stop making assumptions about people based on how something is phrased and instead focus on what they ACTUALLY said.

        Hearing an overture doesn’t mean you know how the rest of the opera is going to sound …

        • No, they don’t, in the sense intended, which is that they are immune from laws and consequences, and that they are intrinsically eeeeevil. That’s a bias. They are powerful, and like all powerful organizations, prone to corruption and abuse of power—like the government. Hostility to large corporations…not to monopolies, not to cabals, but to big companies that serve the needs of consumer and drive the economy, is bigotry, with the same problem as bigotry. If you get rid of all those big corporation that “always win,” and that where that bias is headed, then you get a poorer economy. If people are going to make sweeping and ignorant generalizations—Bernie’s big attack on Clinton was that she didn’t hate big business like she did—I’m going to hold them to their obvious implications. I worked for the US Chamber for 7 years, and one thing I learned was that the idea that the people who run big corporations are heartless, rapacious monsters. So yeah, the Westin is wrong—and leaping to generalized big company hate from that is as stupid as any other bigotry. See, I also worked for 7 years for the Trial Lawyers Association, and their members make millions beating big corporations every day. So they don’t “always win.” They lose a lot.

        • One note is needed here. Small business, as defined by the government, never gets a mention in this type of conversation. The “dominant form of business” in the US is small business – which employs more than 60% of American workers. As single entities they don’t have power, but as a group they do. But they pay higher taxes, and conform to regs that are designed for the Fortune 500. As employers they dominate. As power brokers they do not.

  3. Any acoustic engineers out there? I’m going to assume at some expense the rooms can be made sound proof. Which most likely should have been done when the owner first built the property. But I don’t know. Maybe electronic/amplified bass is in a particularly pernicious range of sound waves.

    Which brings me to a question I’ve had ever since the mid-’60s: why do rock bands have to play so loud they can’t be listened to? My now sixty-five year-old high school buddy who always had a garage band until only recently now has tinitus. Might be from flying jets for the Navy, but I suspect it’s from standing next to or in front of amps and drums for years. “We’re only immortal for a few years.” –John Mellenkamp.

    Footnote/quiz on “Spur Industries.” Del Webb made his first fortune building runways for all the training airbases in Arizona and elsewhere during WWII. Which MLB team did he own for a while? Jack? Hint: It’s your least favorite team.

    • The Golden Bear was built in 1923 and opened as a cafe. It became a nightclub in the 1960s during the folk/rock era. Being inside the place I cannot remember it being particularly loud at any of the concerts I went to. Unfortunately with the advent of psychedelic rock, the amplifiers got bigger and louder.
      As far as rock concerts in an Amphitheater, the solution that many musicians rely on is acoustic ear filters. Too bad for their fans if they don’t buy some themselves.

    • Yes, it’s absolutely possible to greatly attenuate exogenous sound, but gets pricey and more complex with increased efficiency. The proper use of materials and dead space is key, and this often involves needing a bigger footprint for the same living space.

        • My hub is an architect, and I’ll bet the architect on the project did NOT have enough info about the area to plan for it. OR, just as likely, Westin didn’t even consider what to do about it because it would have significantly changed the cost. Even if the original plans called for increased dead space within walls, differing windows, insulation, etc.

          My hub is working on a hospital right now that just changed the specs on ALLLL the windows because some literal crazy person figured out how to take out a window and jumped (he lived). It wasn’t a psych floor, so now the board is changing EVERY window in the place to meet majorly different standards so no crazy person can ever again get a chance to bust a window and jump. Even in areas where the patients don’t go. They are NOT acting like a corporation. I bet Westin didn’t think about it til it was too late.

  4. In Denver, Colorado, we have 2 venues of historical record next to each other on the mountain slope: Red Rocks Amphitheater and Bandimere Speedway. Guess who’s building houses next door and complaining.

  5. I believe there have been several such cases between developers and owners of airports. In at least one case, there was no settlement on either side; the reason I remember it is that it was a prime and unforgettable example of caveat emptor and up to the new homeowners to like or lump.

    • As a follow up to Spur v. Dell Webb, developers have been wanting to build houses around Luke Air Force Base in the same part of Maricopa County, west of Phoenix, just below Del Webb’s famous Sun City that booted out the feed lot, in recent years. The home developers complain about the F-16s and, I guess now, the F-35s, roaring around. Of course, when Luke was built during WWII and until fairly recently, it was surrounded by cotton fields. So far, the DoD has prevailed and Luke is still training pilots 24/. The military families call the jet noise, which is substantial, “the sound of freedom.”

      • Word I got from fellow Air Force folks (decades ago) was that the same “newcomer’s rights” (or “developer’s privilege” or “eardrum imperialism,” pick one) conflict happened at McDill Air Force Base, next to Tampa, Florida. There was a time I rode backseat in an F-4 out of McDill. I recall the pre-flight briefing covering “quick climb” procedures at takeoff (i.e., atypical, but not terribly inconveniencing to the aircrews or machines), to avoid making too much noise over a certain residential area. The same seems to have happened (or be happening) at Eglin AFB in Florida – same slogan on many local car bumpers, too (“the sound of freedom”).

  6. I wouldn’t be all that sure Westin will win. Austin/Travis County is so blue it’s almost purple, and my guess is that the case will be tried in a local court first. My next guess is that Westin is hoping the Nook will run out of money before the appeals path is done. Yep, the corporations/governments always win.

  7. Question for the Nook: Who is doing your research on this suit? It seems to me that with everything a hotel chain has to go through to put up a new facility, they would at some point have had to go in front of a city council or development committee to make their case. It would be very interesting to see if Westin actually used the Austin music culture as one of their rationales for building. If so, the Nook has got ’em.

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