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Planning Commission studies possible requirements for amphitheaters

Monday, January 28, 2013 by Elizabeth Pagano

Sparked by plans at the Promiseland West Church, the Planning Commission moved forward with recommendations for new amphitheater requirements last week. Last year, the lack of public process in approving the church’s amphitheater provoked anger – and a lawsuit –   from neighbors who continue to be very much against the project.


Council passed a resolution to change the code in April 2012. Currently, amphitheaters are not a regulated or defined use, or structure. The proposed code amendment would change that, defining it as “an outdoor or open-air structure or man-made area specifically designed, and used, for public assembly and the viewing of an area capable of being used for entertainment and performances.”


The new amphitheater rules would make amphitheaters a “conditional structure”, requiring applicants to go through the Planning Commission for approval in all zoning districts. Staff recommended that a capacity threshold of 100 people be included, so that smaller amphitheater structures would not have to go through the conditional use permitting process.


However, the commission did not heed this recommendation, instead voting 5-3 to approve the amendment and remove any capacity thresholds. Commissioners Brian Roark, Alfonso Hernandez and Richard Hatfield voted against the recommendation, and Commissioner Jean Stevens was absent.


Roark attempted to change the capacity threshold to 25, but was unsuccessful. He spoke to the problems that could arise without a limit.


“It seems like a burden. This could apply to anybody’s backyard right now, if there’s not a number there. It could apply to any of our backyards, if we take an iPhone out there with a portable speaker, or are playing our guitar,” said Roark. “I’m a lawyer, so I tend to be looking at what language means. And if you leave it that open, then another lawyer out there who is a neighbor of somebody could cause problems. To me, it just seems like we’re inviting, not just litigation, but problems for your average Joe.”


Planning Manager Jerry Rusthoven said that was the intent of the size restriction in terms of capacity. He explained that staff had put a great deal of thought into creating a definition, and though a 100-person capacity was an arbitrary figure, it seemed important to have a minimum size to help define the structure.


“Basically, what we have is an area where people gather to focus on a central point, outside,” said Rusthoven. “My concern is that if you have a small area, like some churches have a small little prayer area where there are five or six benches around a circle – I wouldn’t want someone to come in and say that’s an amphitheater.”


Commissioner Danette Chimenti worried that with staff’s 100-person threshold recommendation, someone could build an amphitheater and have events, and as long as they claimed it was for fewer than 100 people, they could hold events any time they wanted.


“If you’ve got single-family houses on three sides of a church, which happens in many neighborhoods, then 50 people having events all the time could be problematic,” said Chimenti. “It’s also very problematic how you come up with counting 100 people.”


“If you think about that, there is no compatibility, no buffer required, no nothing – and (churches) can just have an amphitheater – I think that bears some people looking at that,” said Chimenti.


Chimenti explained that if it were a conditional use, the capacity numbers would not be needed, because the Planning Commission would be able to look at each case individually.


Rusthoven tried to clear up confusion in the crowd, who showed up to oppose the ordinance. He referenced an email that had been heavily circulated. The email warned that, were the changes to pass, “outdoor amplified events” could be coming to neighborhoods soon.


“This does absolutely nothing to affect the amplified sound permit,” said Rusthoven. This would not be the case any more than usual under the proposed changes.


As Rusthoven pointed out, outdoor entertainment is already a conditional use, so if one were to build a restaurant with an amphitheater, such as Stubbs, under the proposed changes they would need to get two separate items approved by the Planning Commission – the use, and the structure.


Some of those who spoke against the proposed changes were explicit about the focus of their concerns, and spoke against the grandfathering which would allow existing amphitheaters in Austin to remain standing.


“We want to make sure that the ordinance that is ultimately adopted actually overturns the land use determination in the case that caused this to happen. We do not believe that this ordinance does so,” said speaker Paula Jones.


Rusthoven explained that this was correct, and in the case of Promiseland West,


“The Promiseland Church has already been approved. The site plan has been approved by the city.  The amphitheater that is part of that religious use has already been approved.” said Rusthoven, adding that a lawsuit over that approval prevented him from saying much more than that.

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