The new noise ordinance isn't really my issue. I didn't follow it as it wended its way from task force to Council. Others have (see here, here and here).
But the controversy over Shady Grove finally motivated me to read the ordinances myself. I've put my thoughts below.
Let me stress that I've had no prior experience with these ordinances. I don't know how city staff has interpreted the noise ordinance in the past or how they're interpreting the new ordinances. And I could have missed some relevant code provisions. In other words, I've strayed outside my area of expertise. Proceed at your own risk.
If anyone spots a mistake below, please let me know and I will cheerfully correct my analysis.
Austin's outdoor music ordinance is codified at Chapter 9-2 of the city code. Before February 26, 2009, the ordinance was pretty straightforward. An "outdoor music venue" was defined as "a commercial property where sound equipment is used to amplify sound that is not fully enclosed by permanent, solid walls and a roof." Sec. 9-2-1(4). The owner or operator of an outdoor music venue had to first get a permit. Sec. 9-2-12. However, the approval of the permit was a purely ministerial task; Section 9-2-23 provided, "The director shall issue a permit to a person who submits an application meeting the application requirements under this article and pays the application fee." "Shall" is a mandatory word that implies no discretion.
Once someone had a permit for an outdoor music venue, he could generate up to 85 decibels (measured at the property line), but had to stop at 10:30 p.m. on Sundays through Wednesdays, 11 pm on Thursdays, and midnight on Fridays and Saturdays. (Sec. 92-2-12.) (The Code imposed and continues to impose some other limitations which depend on the proximity of residential property.)
The Code has another provision that specifically addresses restaurants. Section 25-2-808 provides, "Live entertainment is permitted [at a restaurant] if the amplified sound does not exceed 70 decibels, measured at the property line of the licensed premises."
One could argue, I suppose, that this provision means (and meant) that restaurants are always limited to 70 decibels. But this provision also has to be read together with the outdoor music venue provision. Because the city was allowing restaurants 85 decibels, I assume staff determined that a restaurant that was also an outdoor music venue got the outdoor music venue noise limits.*
On February 26, 2009, the City adopted Ordinance 20080226-028. This ordinance explicitly includes "restaurant" in the definition of "outdoor music venue." But . . . it provides that a "restaurant use" is subject to the decibel limits of Section 25-2-808 -- i.e., 70 decibels. (Section 9-2-12(F)). No longer can a restaurant get the 85-decibel limit by applying for an outdoor music venue permit.
Restaurants vs. cocktail lounges
Now here's a little twist.
Section 25-2-808 limits restaurants to 70 decibels. But it does not say anything about cocktail lounges. The February 26, 2009 ordinance does not say anything about cocktail lounges, either. Thus, a cocktail lounge that gets an outdoor music venue permit can produce 85 decibels.
So the difference between restaurant and cocktail lounge is important. What is it?
We have to wade through the code definitions.
Section 25-2-4(B) defines them thus:
(15) COCKTAIL LOUNGE use is the use of a site for retail sale of alcoholic beverages for consumption on the premises, including taverns, bars, and similar uses, other than a restaurant use as that term is described in this section.
(60) RESTAURANT (GENERAL) use is the use of a site for the preparation and retail sale of food and beverages and includes the sale and on-premises consumption of alcoholic beverages as an accessory use.
What does this mean?
The most natural reading is that if you prepare and serve food and you sell alcoholic beverages for on-premises consumption as an "accessory use," then you are not a cocktail lounge -- which means you are stuck with 70 decibels under the February 26 ordinance.
I'm not sure how the city interprets "accessory use" here, but presumably it means the sale of alcohol is incidental to the sale of food. Perhaps staff relies on Section 25-2-808, which treats food sales as the principal use as long as they are at least 51% of gross revenue. (Section 25-2-808 has some other requirements, mentioned below.)
I don't think city staff has had to confront this question until recently. Owners have traditionally fought to have their establishments designated a restaurant rather than cocktail lounge. Cocktail lounges are only allowed in districts zoned CS-1, while restaurants are allowed in the less restrictive CS. Few properties are zoned CS-1.
The designation as cocktail lounge or restaurant was a continually contentious one; any establishment that offered some food called itself a restaurant. So a few years ago the city amended Section 25-2-808 to require an establishment to meet all kinds of conditions to be a "restaurant": more than 51% of its revenue must come from the sale of food, it must have menus, the menus must specify prices, etc.
The important point is this: If you prepare and sell food, and the sale of alcohol on premises is merely incidental to the sale of food, then you are a restaurant and are stuck with 70 decibels.
Given these definitions, I don't see how a restaurant can simply re-designate itself a "cocktail lounge" to get the 85-decibel limit. It will either have to stop preparing food for sale, or it cannot allow the sale of alcohol to be a mere "accessory use." A lot will ride on how the city interprets that phrase. If it says that alcohol sales are an accessory use as long as they are less than 51% of gross revenue, then restaurants that sell more food than alcohol (which I speculate is the case with Shady Grove) will not be able to re-designate themselves as cocktail lounges. But this is a murky issue; the city might adopt a different interpretation.
The March 12, 2009 ordinance
On March 12, the City Council adopted Ordinance No. 20090312-017. I don't remember how it was portrayed to the public. But it basically gives city officials unbridled discretion to deny anyone an outdoor music venue permit.
First, it defines a whole bunch of "interested parties" who are entitled to notice anytime someone applies for an outdoor music permit or applies for a permit renewal. These include the relevant neighborhood association and homeowners within 600 feet. Neighbors weren't entitled to notice under the old ordinance.
Once someone applies for a permit, the city mails a notice to everyone and then has to wait 14 days before making a decision.
A city official must then decide whether to approve or deny the permit. The ordinance says he must consider these criteria:
(a) proximity of the proposed outdoor music venue to existing land uses, including consideration of the date on which the venue was originally permitted relative to surrounding land uses;
(b) the size and capacity of the outdoor music venue;
(c) sound mitigation to be provided by the operator of the outdoor music venue, including but not limited to building design, landscaping, and buffering;
(d) additional limitations on the hours during which sound equipment may be operated, beyond the limits required under Section 9-2-12 (Permit for an Outdoor Music Venue); and
(e) the history of noise complaints regarding the outdoor music venue as verified by the chief of police or the accountable official.
(Section 9-2-23(B)(1).)
So even a longstanding venue faces some risk here. Neighborhood opposition will matter. A history of neighborhood complaints will matter. A venue will be at more risk if it is a relatively new venue. But, again, the city official will have the discretion to approve or deny the permit as he sees fit. If the city official turns the venue down, it will have to appeal to the City Council and undergo a full public hearing.
The March 12 ordinance did give restaurants an automatic right to a permit, although it allows the city to impose conditions. (Section 9-2-23(B)(3).) But nothing in the March 12 ordinance relaxes the 70-decibel requirement for restaurants. So, as I read it, restaurants are still stuck with the 70-decibel limit.
Shady Grove's response to its citation jives with this. It is not only seeking an outdoor music venue permit, there are reports it is seeking a reclassification as a "cocktail lounge." It wouldn't do that it if didn't have to.
Conclusion
Here is how the ordinances affect restaurants like Shady Grove and Freddie's, as I read them:
A restaurant is limited to 70 decibels. Period.
A cocktail lounge that gets an outdoor music venue permit can produce 85 decibels. But approval of the permit is discretionary and neighborhood groups will be entitled to lobby the official, neighbor complaints will matter, and so forth.
A restaurant that wants 85 decibels will have to be re-classified as a cocktail lounge. Unless the restaurant wants to stop serving food, this will require it to show that its sale of alcohol on premises is not merely an "accessory use."
How city staff interprets "accessory use" will matter a lot. If staff gives it a loose interpretation, it will be easy for restaurants to make the switch. But if staff uses criteria that appear elsewhere -- e.g., the 51% food/49% alcohol split the code uses to distinguish between restaurants and cocktail lounges -- it could be hard or impossible for restaurants like Shady Grove to make the switch.
Postscript: One last point I should emphasize. A restaurant cannot make the switch to cocktail lounge unless it is in a CS-1 zone. (But see update.) I haven't taken a survey, but my recollection is that, even on busy streets, few properties are zoned CS-1. (Obtaining a zoning change is terribly time-consuming and expensive.)
*Section 25-2-808 does not set specific hours. I assume (but do not know) that restaurants are subject to a different provision of the outdoor music venue ordinance that limits the use of sound equipment to 10 p.m. unless the venue is more than 600 feet from residential property.
