“Keep Austin Quiet”?

Navigating the intricacies of Austin’s archaic zoning and permitting ordinances is not for the faint of heart, nor soft of brain. It is a convoluted topic. It is a dry topic. It is a bureaucratic entanglement of heroic proportions. However, in order to arm oneself in the fight to maintain Austin’s tenuous claim to the title, “Live Music Capital of the World,” one must have a fundamental understanding of the ordinances governing the venues that host outdoor music.

All the clerical rigmarole regarding zoning has been dragged into the limelight of late following the decision of Fred Nelson, owner of Freddie’s Place on South First, to cancel his restaurant’s entire live music calendar this year because of a noise ordinance violation warning by the Austin Police Department on Friday, April 10. The restaurant simply couldn’t afford the $500 fine if the cops came back a second time, and they sure didn’t want one of their employees carted away after a third call. The first casualty in a conflict frequently becomes a rallying cry for those on the losing side, and the death of music at Freddie’s was no different. No civilian in Austin is more familiar with the city’s zoning ordinances and use permits than Gary Etie, the founder and CEO of Austin City Permits. Mr. Etie has been wrangling with the City of Austin and the Planning Commission on behalf of businesses and property owners since 1981, and he graciously spent much of his Saturday afternoon clarifying the finer points of the city’s zoning codes.

Gary Etie says that “Neighborhood Groups, Council Member Morrison, certain City of Austin attorneys, et al, brought over an existing 70 dB limit that was found in the Zoning section of the Code, Chapter 25-2, and brought that language over to the Outdoor Music Venue Permit Amendment that was passed just prior to SXSW, while everybody was too busy to do anything to stop them. An Outdoor Music Venue Permit is a separate ‘Noise and Sound’ permit, issued under the Noise and Sound Ordinance, and must be obtained in addition to the Building Permit that establishes Use as a Restaurant or Cocktail Lounge.” 

So why, of all places, was Freddie’s targeted for investigation that night? It’s a small, unpretentious operation, and very popular with the regulars. With the exception of the occasional noise dragnets by APD in downtown (anyone who has spent any time in the live music districts will have seen them, going from club to club with their little meters), investigations into noise ordinance violations are, more often than not, “complaint driven.” This means somebody near Freddie’s didn’t like what was going on, and called the police. Here’s where the zoning and permit issues come into play.

Mr. Etie informed me by e-mail that, “Freddie's zoning is ‘CS-MU-V-CO-NP’ [and] Freddie's use is ‘Restaurant.’” After a blank stare at the screen for a moment, a quick follow-up appears in my inbox, and with a virtual wink, he explained that, “’CS-MU-V-CO-NP’ = Commercial Services, Mixed Use, Vertical Mixed Use, Conditional Overlay, Neighborhood Plan.” What does this all really mean? He clarified that, “In order to have on-premise sale and consumption of alcohol, a location must get a Certificate of Occupancy for the Use ‘Restaurant (General)’ or ‘Cocktail Lounge.’ Those two, no others will work, in Austin, at this time. Restaurant Use is allowed under numerous Zoning Categories; GR, CS, CS-1, etc.”

There are currently 38 unique base zoning classifications listed on the City of Austin Development Process website. Each zone classification is considered against a list of various uses, and is designated as “permitted,” “conditional,” or “not permitted” for a given use. In addition, there are 15 overlay districts, whose particular tenets may override or be used to modify the permits under which an establishment located in one of the base zoning classifications operates. An establishment’s most recent building permit, and the use that is specified in the description section of the permit application, is what establishes the location’s legal use.

When one conceptualizes a “zone,” one usually thinks in terms of geography. In the City Planning Commission’s eyes, however, a zone is a logical construct meant to embody the intended use of a given structure or property. Only in a few very special circumstances does geography play into zoning classification, such as in the downtown corridor, known as the Central Business District (CBD). In short, if an establishment wants to engage in a certain type of business, it must first be zoned appropriately, and then, if their chosen business usage is of the “conditional” variety, they must apply for and obtain a conditional use permit through the City Planning Commission to begin engaging in that business. If the usage is designated “permitted” in that zone, no additional paperwork is required. Depending upon the circumstances, obtaining a conditional use permit can be difficult. And if a business wants to change the zoning and/or permit that it’s operating under, that can be an even bigger pain in the neck.

The most important designation, Freddie’s usage status as a “Restaurant,” is key to understanding why it was investigated and warned. Austin City Code § 25-2-808, pertaining to “Restaurants and Cocktail Lounges” states, “live entertainment is permitted if the amplified sound does not exceed 70 decibels, measured at the property line of the licensed premises.” If you haven’t heard, 70 dB is about as “loud” as the traffic that goes up and down First Street, which is practically at Freddie’s front door. In essence, that means the traffic can be louder than the band. “Live Music Capital,” indeed. While that ordinance has been on the books since the 1970’s, restaurant owners and even the enforcers of city codes previously believed the noise threshold to be 85 dB. So what other establishments are affected by this new found zeal to “Keep Austin Quiet”?

The highest profile venue technically subject to the 70 dB limit is, or was, Stubb’s Waller Creek Amphitheatre. According to its 1996 building permit, Stubb’s decided it wanted to be a “Restaurant,” operating under the same usage permit as Freddie’s. Can such a high profile (and highly profitable) Austin icon fall victim to something as trivial as equal application of the law? The city council doesn’t think so, and has altered the zoning ordinance to make sure of it. While there is some debate on exactly how Stubb’s was previously zoned, on April 23rd, the council unanimously voted to rezone the area surrounding and including Stubb’s, “from general commercial services (CS) district zoning, commercial-liquor sales (CS-1) district zoning, and central business district – central urban redevelopment (CBD-CURE) combining district zoning to central business district – central urban redevelopment – conditional overlay (CBD-CURE-CO) combining district zoning.”

By rezoning Stubb’s into the CBD-CURE-CO, the council has ensured that one of Austin’s highest profile venues can easily apply for and receive a change of use permit. According to Etie, in that zone, a “Cocktail Lounge” usage designation does not require a conditional use permit, and, is subject to the more reasonable 85 dB limit. “They already have CBD Zoning, so they can get administrative approval for a Change of Use to ‘Cocktail Lounge.’ That will bring back the 85 dB limit,” Etie writes. But what can places that feature regular outdoor shows, venues like Freddie’s, Guero’s, Doc’s, and Threadgill’s Armadillo World Headquarters, do about it? In most cases, not much.

"Threadgill’s lies outside the CBD,” Etie states. “However, because the location has CS-1 zoning, and is also in a Waterfront Overlay, they can change from their current Use Category of ‘Restaurant’ to ‘Cocktail Lounge,’” he continues. “Because the Waterfront Overlay specifies that ‘Cocktail Lounge’ is a permitted use, if the location has CS-1 zoning, then an administrative change of use permit can be facilitated, without having to go before the planning commission." Clear as Barton Springs, right?

Freddie’s, Doc’s, and Guero’s are neither zoned CBD, nor do they lie in the Waterfront Overlay, and are each classified as a “Restaurant.” In order for any of these businesses to continue to operate under the 85 dB threshold they’ve been accustomed to for years, and not the lower 70 dB limit, they have to be overcome several bureaucratic hurdles.

First, presuming they’re already zoned appropriately, they would have to petition for a change of use permit from “Restaurant,” to “Cocktail Lounge.” That permit request would come before the City Planning Commission, where arguments from the businesses’ proprietors and the local residents would be heard. Navigating the murky waters of City of Austin bureaucracy can be quite treacherous. Considering the political pressure that temperance minded neighborhood associations could bring to bear on the council members (to whom the commission members are answerable), the likelihood of a favorable outcome for the business owners, and by extension, the musicians whose livelihood is tied to those clubs is quite low.

The new found zealotry of the council to prosecute restaurants that feature live music outdoors should raise a few question marks. Why now? Who benefits? Where is this pressure coming from?

The buck stops ultimately with the city council, but the man who has to deal with the grim realities of the situation is Dave Sullivan, Chair of the Planning Commission. Etie observes “Dave is [also] … on the Codes and Ordinances Subcommittee, which is studying the issue of Zoning Districts, Use Categories and Use Definitions, and how they might be added to or amended, in order to include the  ‘on-premise sale and consumption of alcoholic beverages,’ up to certain limits, for certain uses. So, to summarize, in Austin, at this time, if a location wants both on-premise sale and consumption of alcohol, and outdoor music up to 85 dB, they must have ‘Cocktail Lounge’ as the legal Use.”

Etie proposes a reevaluation of the current zoning and usage codes, and is attempting to work with the Planning Commission to that end. “This effort is a follow up, partially, to my suggestion from about a year ago, in order to address long standing, outdated restrictions, and to account for, and take into consideration, modern business plans and practices.” For the sake of live music in Austin and the sustenance of several iconic local businesses, let’s hope he succeeds.