Austin City Permits

The following is a repost of my reply to the post  “The Halfway Point Between Developers and Venues”,  by Joshua Leasure P.E., an acoustical consultant living and working in Austin, on his excellent site: “Austin Noise | Discussion on community noise in Austin, Texas”.

———- begin Comment ———-

Joshua,

First, I want to applaud your comprehensive and professional approach to the issue
of Noise & Austin. Your most recent post, analyzing the Nutty Brown Cafe sound
issues, is excellent.

You have my complete support in continuing your efforts to educate all parties;
the public, business owners (especially venue managers), and developers as to the
facts, and workings of the current state of affairs, especially in the area of
analyzing the extremely bad and broken Noise & Sound Ordinance, in it’s current
form.

I’ll point out the following, however, as to what, in my personal opinion, is the
real problem, in spite of the Music Commissions great work. I feel that if this
central problem is addressed, it would make your work, my work, and the Music
Commission’s work, much more effective and beneficial to everyone concerned.

At the following links, you can read certain facts, along with my analysis of why
the City Council is moving (albeit, as slow as molasses), in the exact opposite
direction of the Music Commission’s Recommendations to Council (which is the limit
of the Music Commission’s power.

“DANA Letter to the Mayor & Council” – http://goo.gl/y2pD4

“Disingenuous Politickin’” – http://austincitypermits.com/?p=4170

“Mistake on Decibel Reading Location” – http://austincitypermits.com/?p=4510

In the posts, above, it is clear as to why, on Feb 17th of this year, Council
staff basically “screwed the pooch” and set back Austin’s Noise & Sound Ordinance
several years

The letter was from DANA (Downtown Austin Neighborhood Association) who were, at
the time, very much “at the stakeholder’s table” of the backdoor meetings being
called by certain members of the Council. I am of the opinion that DANA was
overzealous, drunk on the attention and support they were getting from Council and
Staff, and simply overstepped the boundary of just what an organization can
insert, of it’s own agenda, directly into the Code.

“Inadvertently … left in place?” – http://austincitypermits.com/?p=4526

That Ordinance included the provision that: ““The decibel limits prescribed under
this section must be measured … from the location of the sound equipment on the
property or site where the permit is issued.”

This meant that the current 70 dB (Restaurant) and 85 dB (Cocktail Lounges &
non-Restaurant venues) decibel level limits would hence forth be measured in front
of the speakers!

I was told that Staff didn’t have an Ordinance ready, and with mere weeks before
SxSW, a Council Member ordered, “We need something now. Put something together,
and get it on the Agenda!”. The Mea Culpa in the form of a Memo by the Council’s
staff lawyer, can be read here:

http://goo.gl/5nk7I

As a result of my efforts to quickly call attention the mistake, an additional
ordinance was passed (!) 2 weeks later, in order to rid the Code of the
inappropriate “mistake”.

“Location of dB Readings Changed” – http://austincitypermits.com/?p=4494

However, if you’ll notice, several other “suggestions” from the Dana letter have
remained in the Code, as of that one rushed Ordinance.

The Music Commission, as well as the City’s Music Office have been doing an
excellent job of communicating these damaging inclusions, starting as recently as
6 months ago, so far, absolutely NO action has been taken by Council … and that’s
my point.

Respectfully, Gary Etie

———- end Comment ———-

Would somebody, please, just get this guy elected. Please?

Endorsement: “The Teapot Party was started to help people like Kris Bailey get elected. We endorse him in his run for Austin City Council. Good Luck Kris. - Willie Nelson

Kris Bailey: “Austin is the Live Music Capital of the World. We need to keep it that way! As a council member, I will support our local music venues, we need an environment in which they can easily do business. We don’t need more restrictions for the industry that we are famous for. Sometimes the City Council doing less would actually accomplish more.

More specifically, this means I don’t think we should be passing out tickets to bar owners, and the permit process to have a show should be simplified. If somebody applies for a permit for a show, they should not have to fight the city for it, they should just get it.”

 

Sound Ordinances and Permits: “Austin is the “Live Music Capital of the World,”  we need to be friendly and understanding towards the people that make it this way!  Our bar owners and music venue owners are constantly running into a brick wall with the city over being allowed to operate.  Some bar managers have been cited multiple times in a single night over trivial issues.  The music community needs an advocate on the City Council and Kris Bailey will do just that.”

Clarification: “To the people talking about voting for Toby Ryan for Austin City Council I want to make it clear, you can vote for us both, I’m not running against Toby, we are running for different seats!”

Received a nice shout out in Austin Powell‘s “Off the Record” column in the Austin Chronicle’s recent April Fools Day issue. Below the relevant quote from the column is my 3-part response:

Permission To Speak
Off the Record | Austin Powell | Fri., April 1, 2011

“Local booker Joyce DiBona describes Jovita’s issues with the city during South by Southwest as “a comedy of errors.” Despite years of successful unofficial events during the music portion of the Festival, the South Austin venue neglected to apply for the Temporary Use Permit and Sound Permit necessary to host live music.

Public Assembly Code Enforcement officials subsequently forced Jovita’s to move its annual Twangfest inside on Thursday, March 17. That’s when Gary Etie of Austin City Permits went to work. Over the next 24 hours, the local consultant sent 47 e-mails to city officials, requesting the expedition of necessary permits for the following day’s Irish showcase, while noting provisions in the city code that would allow for it and having the Fire Department informally (and later officially) approve the temporary setup.

Due to deadline constraints, the city denied the request. Jovita’s moved a portion of the event indoors, canceled some acts, and took a calculated risk by having SXSW Keynote Speaker Sir Bob Geldof still perform outside as planned, after which Jovita’s received two citations that were later dropped.

“This was a case of old Austin not really assimilating to all of the bureaucratic changes that have taken place,” says DiBona, “and it was an omission that we paid for.” Part of the confusion faced by Jovita’s as well as South by San Jose and Home Slice Pizza, among others, boils down to the poorly timed changes to the Austin sound ordinance, passed by City Council on Feb. 10.

The amendment requires a temporary event impact plan to be approved by the city’s music office and office of special events for 24-hour permits, and for multiday special events, a city official must also give 14 days’ notice of the events to homeowners and registered neighborhood organizations within 600 feet of the site.

In other words, that two-week buffer left live music venues less than three weeks to submit the proper applications for SXSW. Even so, the number of special event permits approved rose from 37 to 45 this year.

“We had sandwich shops and dry cleaners that knew the rules,” counters Don Pitts of the Austin Economic Growth and Redevelopment Services Office. “There should be a clear-cut deadline, because it’s difficult for us to honor last-minute requests, and frankly, more planning needs to go into events than that.”

Pitts says his office will be more proactive over the next year in educating venues about the process and requirements. Thankfully, construction has already begun in Bastrop on a new entertainment complex – similar to the Villa Museproject – that will help alleviate these issues. For more on this breaking development, see “Dome Sweet Dome,” and “Dome and Domer,” News.”

3-part Response:

1. The Devil Is In The Details:
AustinCityPermits.com Mar 31, 2011, 12:02 pm

Austin, thank you. To clarify the issue of “deadline constraints” – The 24-hour Live Music Permit does NOT require a “14 days notice”, that applies only to the Multi-day Permit. Your sentence states that correctly, but the way it reads, readers might get the impression that the 24-hour permit requires “14 days notice”.

On the three weeks buffer: The Feb 10th Ordinance allows for 14 days, after application, for Notification for a Multi-day permit, and requires 14 days to pass AFTER Notification goes out, prior to the Permit being issued. … that means it COULD take 28 days, a full 4 weeks after applying, for a Permit to be issued. One could have applied on Feb 16th, 6 days after the new ordinance was passed, and still could have failed to receive a permit, the way the Code is currently written.

Inexplicably, the ordinance allows 30-days for the Music Office to come up with the required Temporary Event Impact Plan … “the music office shall provide a recommended temporary event impact plan to the accountable official within thirty (30) days after receiving the application” How that actually can affect a permit applications timeliness, I do not know.

As it happened, a deadline of Feb 25th was declared, for Multi-day permits, for the March 16th SxSW Music start date, meaning Notification would go out within 4 – 5 days (the following Tuesday) … I found out about this Feb 25th deadline on … Feb 25th … and I try my best to keep up with these things.

That means live music venues were left with, not three weeks, as stated in the column, but two weeks after the new ordinance was passed, to submit the proper applications.

Then March 4th, a full 12 days before SxSW Music, was declared the deadline for 24-Hour Live Music Permit applications, even though neither a notification, nor a 14-day wait period, is required. Neither of the deadlines were properly announced, and neither are written in the Code.

Big warning – if you think they messed it up this time, by being given direct access to the Code writing process(?) Downtown (DANA) is announcing, proudly, that round 2 is coming. The numerous mistakes in the Feb 10th ordinance were bad enough, many of which were taken directly from a DANA letter to the Mayor & Council. ( http://austincitypermits.com/?p=4170 )

2. Trouble, You Can’t Fool Me
AustinCityPermits.com | Apr 01, 2011, 02:39 pm

Austin, and Chronicle readers, note, the fox in the henhouse:

Feb 9, 2011 – First Draft version of the new “Temporary Event & Live Music” Ordinance appeared on the Council Agenda web page.

Feb 10th – The Draft was revised, and became Final, approximately 2 hrs before Council went into session (10 AM). The ordinance was rushed into law, on an emergency basis, on the consent agenda, with NO public or council discussion, at least not while Council was in session. ;^o

Feb 11th: DANA claims the leadership role in the changes that were made, along with claims that the amendments helped clarify the Code.

“DANA Supports Sound Permit Changes
Friday, 11 February 2011 14:15
by Josh Allen and Jamie Lagarde

On Thursday, February 10, Austin City Council passed a series of noise related code changes that were principally focused around Multi-day Special Event Permits. DANA supported these revisions because, even more important to downtown residents, there were also broader code changes that impact all sound permits such as measuring sound at the source instead of the property line, requiring permit signs posted at all outdoor music venues, reducing the appeal time frame, and defining the factors used by the Music Department in granting new Outdoor Music Venue (OMV) permits. Council also took the opportunity to reorganize the code which should reduce confusion in the community. Issues related to noise downtown has become an increasingly larger issue for downtown residents, and DANA has been working with APD, City Council and staff on proposed changes.

The code revisions passed on February 10 are a first step at solving some critical noise related issues downtown. City Council Members have heard DANA’s concerns, and realize this is only a first step. DANA supported the revision and reiterated residents concerns when address the second phase of the sound ordinance revision. For more details on DANA’s position letter, click here.

The City’s Music Department and City Council are working on further revisions to the sound ordinance that address the most critical issues such as cut off times, and overall noise ordinance enforcement. DANA will continue to take a leadership role in making sure that the changes create a balance downtown where great downtown establishments thrive but residents can also sleep at night. We are excited about the Council’s changes so far but the most critical work is ahead of us. … Contact us at info@downtownaustin.org”

3. (No Title)
AustinCityPermits.com | Apr 01, 2011, 03:14 pm

… stayed up all night, first chance to read & study the 18 page document.

5:01 AM, Feb 11, 2011: I posted a warning about what I felt certain would be a catastrophe, if allowed to remain in the Ordinance: http://austincitypermits.com/?p=4494

A corrective ordinance was passed, to fix that problem, and DANA responded:

“Sound Debate Phase 2 is Coming
Tuesday, 01 March 2011 18:29

Amplified sound, noise, music and live music. There is a difference in these, especially when it comes to outdoor music near downtown residences. The Downtown Austin Neighborhood Association (DANA) is a strong supporter of Live Music.

Live Music is why we supported the recent changes to the Sound Ordinance adopted by Council to create Multi-day Special Event Permits for outdoor live music, which are most applicable during SXSW. That ordinance revision also simplified the code, reducing confusion for music promoters, entertainment businesses and residents alike. In short, the code revision was a first step in the right direction as a stop gap for SXSW to once again grace our downtown with fine music, a great time and significant economic benefit.

In the scurry to finalize the ordinance in time for SXSW preparations, the ordinance changed the place sound is measured from the property line to the source. On March 3, Council will consider a corrective ordinance to return the measurement of sound to the property line.

DANA is concerned about measuring sound at the ground-floor property line as the problematic sound from the rooftop deck shoots over the top of sound meters. Nevertheless, DANA believes the location for appropriate measurement of sound should be part of a larger conversation, in what some Council Members have called “phase two” of Sound Ordinance revisions.

We support the corrective amendment and look forward to continuing our work with City staff, City Council and our fellow stakeholders during “phase two.” Together, we can create a balance downtown where great entertainment establishments thrive and residents sleep at night, in accordance with DANA’s mission to improve the quality of life for those who live, work and play downtown.

We always want to hear from you. If you have comments or questions, please let us know! Contact us: info@downtownaustin.org.”

Combine the statements in the 2 DANA letters; couple that with the unanimous 7 – 0 “walking quorum” vote that took away Lustre Pearl’s approved Outdoor Music Venue Permit, against staff recommendation, and what do you have? … You tell me.

Thank you,
Gary Etie – Austin City Permits

(Updated 02|10|2011 8:45 am !) A REVISED Draft of the proposed ordinance has been posted on the morning of the Council meeting:

“The city council finds that the City’s existing noise regulations do not provide adequate flexibility to address the unique challenges posed by multi-day music events. Given the prevalence of such events during the upcoming spring festival season, the council finds that the need to improve the  City’s noise regulations constitutes an emergency. Accordingly, this ordinance takes effect immediately upon its passage for the preservation of public peace, health, and safety.”

Read the full Draft Ordinance here (now a broken link!)

Read the Revised Draft Ordinance here
(3 Excerpts are provided below)

Sign up for Thursday’s Council meeting
The Austin Music Community should to be heard.

Excerpt 1, the intro:

Temporary Events & Outdoor Music Ordinance
Page 1 of 18
COA Law Department
Responsible Att’y.: Brent Lloyd

ORDINANCE NO. ____________________
AN ORDINANCE RELATING TO REQUIREMENTS FOR SOUND AMPLIFICATION AND TEMPORARY EVENTS; AMENDING CITY CODE SECTIONS 9-2-1, 9-2-34, AND 14-8-34; REPEALING AND REPLACING ARTICLES 2 AND 3 AND RENUMBERING ARTICLE 4 OF CITY CODE CHAPTER 9-2; AND ADDING A NEW CITY CODE SECTION 9-2 65. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF AUSTIN:

PART 1.
City Code Section 9-2-1 (Definitions) is amended to delete the definition of “Director,” to add the following new definitions, and to renumber the remaining definitions alphabetically:

(3) MUSIC OFFICE means the division or  working group of a city department designated by the city manager with advisory and administrative functions related to permitting of outdoor live music.

(5) RESIDENTIAL PROPERTY means the portion of a site or property that is zoned and used as residential.

(6) RESPONSIBLE PARTY means a sound engineer, audio professional, or other person authorized to make decisions regarding the use of sound  equipment permitted under this chapter.

(9) TEMPORARY EVENT IMPACT PLAN means a plan  required in connection with approval of a temporary event permit under Section 9-2-52 (Temporary Event Impact Plan).

(10) SPECIAL EVENTS OFFICE means the division or working group of a city department designated by the city manager with planning, coordinating, and overseeing special events requiring city approval.

(11) SPRING FESTIVAL SEASON means Wednesday through Sunday during the third week of March, unless the city manager designates an alternate five-day period for a particular year.

(12) TEMPORARY CHANGE  OF USE PERMIT means a permit issued by the building or fire code official to authorize a temporary increase  in occupancy levels allowed by applicable technical codes for a property or structure.

(13) TEMPORARY USE PERMIT means a  permit issued by the Planning and Development Review Department  under Chapter 25-2, Article 6 (Temporary Uses) to authorize a temporary activity not otherwise allowed as a principal or accessory use in a base zoning district.

Excerpt 2, new “Live Music Permits” category:

§ 9-2-36  TYPES OF LIVE MUSIC PERMITS:

Excerpt 3, the closing:

“PART 11. The city council finds that the City’s existing noise regulations do not provide adequate flexibility to address the unique challenges posed by multi-day music events. Given the prevalence of such events during the upcoming spring festival season, the council finds that the need to improve the  City’s noise regulations constitutes an emergency. Accordingly, this ordinance takes effect immediately upon its passage for the preservation of public peace, health, and safety.”

Noise & Sound Ordinance Changes Are Imminent:

There is no mention, at this time, on the City of Austin website (See City Council Draft Agenda for Jan 27th) but if you are interested or involved, bookmark that link, and help me keep an eye out for the addition of an Item that is going to have a significant impact on the Austin Music Community. Note: “Draft agendas are subject to change without notice”.

On Jan 27th, or soon thereafter, the Council is going to propose significant changes to the Noise and Sound Ordinance.

Whether they intend to amend the existing ordinances, or create a completely new  sets of rules and regulations to guide the City of Austin in reviewing, approving, and hearing appeals, for Outdoor Music Venue and Sound Permits, and enforcing the ordinance, I don’t know. Several interested parties appear to be heavily involved in the discussion and formation of these changes. The Music Commission voted on recommendations on Nov. 1, 2010. As far as I can tell, this year, thing are much less transparent, and will only see the light of day when added to the Agenda.

One big question is, will the Council reinstate the expired, multi-day Sound Permit, as, again, we are stuck with the existing 1 day Sound Permit, or the year-long Outdoor Music Venue Permit, as the only 2 options for an outdoor music event, and that won’t cut it, especially during SxSW.

Listen, in the video below (32:00 ), to the discussion at Thursday night’s Council hearing, when Council Member Sheryl Cole asked about Lustre Pearl’s ability to have an outdoor event during SxSW.

The listen, closely (35:10) to what Council member and Mayor Pro Tem Mike Martinez says about discussions that are going on, referring to the revival of last year’s first-ever,  multi-day, 96 Hour Sound Permit.

I suspect that several well run organizations have gotten their PR campaigns and lobbying tools in order, and may get actual consideration of some of the backward looking suggestions that are being presented to Council. At the moment, it does not feel like this is going to turn out well, for the music community, and the creative class in our town, unless something is done to counter the forces that desperately needed protection of their dominant position, or real estate investments.

Vanity forces me to watch my 3 minutes (at 6:15) but it’s painful, and you may just want to skip it. I was contacted by Lustre Pearl only 3 days before the Council’s hearing of the Appeal, which left little time to prepare, and by postponing the hearing until 10:30 PM, the people who had donated their time to me had to go to work, and I was limited to 3 minutes. My halting attempt to edit 12 minutes down to 3, on the fly, are apparent.

The vote and the public discussion were all choreographed ahead of time (watch Council Member Martinez closely), so it was all for naught, anyway, for me and about 30 other people who gave up the 8 hours from their day, and their jobs, because the hearing got postponed from it’s originally scheduled 4 PM slot in the Council Agenda (another nice little trick, since entertainment and music business people have to go to work, at night, and can’t stick around to speak and/or show support at 10:30 at night!). My plea to Council, to follow the law, and adhere to the rules and regulations in the Code, was in vain.

As the Lustre Pearl hearing concluded, as the rest of the crowd exited the Council Chamber, I just stood and looked, incredulously, at Mayor Pro Tem Mike Martinez, as the last item on the Agenda was taken up by Council. The Mayor Pro Tem decided to come down from the dais, walk up to me, and  tell me that I had “copped an attitude”.

And you know, he’s right. The way that Permit appeal was handled, in my opinion, was a shame. Neighborhood organizations are specifically barred from the appeal of approved Outdoor Music Venue Permits, in the CBD. It is specifically spelled out in the Code, as part of the Noise and Sound Ordinance that was passed only 2 years ago.

Instead, the letter of the law, and the spirit of the Code was circumvented. The economy was trotted out and blamed for things not working out as the Council had planned, when they zoned the area CBD, at the request of, and by a vote of, the Rainey area residents themselves. Misinformation, fear mongering and overt overstatements of safety concerns were invoked by neighborhood organizations reps, in order to try to salvage their apparently unwise real estate investments.

So I reckon I do have an attitude, and now, a deep distrust, to go with it. I thought we, as a City, as a music community, were better than that.

Reckon me this … what’s the use of rules, if the same people who are entrusted to pass the rules don’t follow the rules, themselves, when it’s politically inconvenient?

Source: Council Meeting Info Center | Austin City Connection The Official Web site of the City of Austin