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