The Atlanta music industry was up in arms over a proposed amendment to the city’s zoning code that would have severely restricted the location of sound recording studios. Last month, Atlanta city council members Felicia Moore and Andre Dickens proposed requiring all sound recording studios to be located at least 500 feet from any residential district and be soundproofed. This amendment to the zoning code would have rendered new sound recording studios impermissible in many districts ‘by-right,’ thereby forcing the future operators to obtain a special-use permit and satisfy the corresponding requirements in order to exist.
The Atlanta City Council ultimately rejected the proposal in a 14-1 vote, but many industries face similar issues and this likely isn’t the last time the music recording industry will be targeted.
The Atlanta music recording scene is largely comprised of small studios, many of which are operated within residential districts. The zoning amendment would therefore place a hardship on the industry since it dramatically restricts the geographical areas of operation for studios and requires the expense of soundproofing.
Zoning codes are often filled with what appear to be completely arbitrary distinctions between uses. It’s often unclear as to whether those distinctions are simply oversights or intentional exclusionary acts by the legislative body to keep certain uses out of particular areas. We’ve advocated for amendments to the Atlanta zoning code to make local theatres permissible in more areas of the city; this would reduce the cost on theatre groups in finding adequate facilities and could have a positive impact on the surrounding communities. It seems rather nonsensical when an area does not allow for small local theatres as a land use, but does allow for uses with equivalent or greater negative externalities.
Recording studios appear to be in the same situation as local theatre groups. The debate seems to center around noise coming from the sound recording studios and the people who frequent those studios. In the proposed amendment, council members Moore and Dickens state that sound recording studios operate at all hours of the day. Community members have apparently voiced complaints to the council members about noise and crime, which prompted the action to amend the zoning code.
Opponents of the proposed ordinance believe that the sound recording studios themselves are not the issue, but that crime is the issue. The studios are simply being used as scapegoats. The proposed restrictions on sound recording studios, therefore, could ostensibly be perceived as arbitrary.
Cities and counties have the right to zone for the health, safety, and welfare of the community and that right is pretty encompassing. To uphold due process rights under the US Constitution, zoning codes must not be arbitrary or capricious. In situations not involving specific protected rights, which is most cases, this is a broadly-defined standard.  A court decide if there is any rational basis for the specific zoning ordinance. In almost all situations the answer is yes. A court can easily conjure up some rationale for restricting sound recording studios from residential areas and for requiring soundproofing.
It gets more complicated when you throw in specific measurements, such as distance in feet or volume in decibels; but they would have to be fairly outrageous for a court to consider the regulation to be arbitrary or capricious. However, council members Moore and Dickens recently revised the amendment to reduce the initial 500 foot buffer to 300 feet with no explanation as to why those numbers were chosen. While a court generally doesn’t require any explanation under the rational-basis standard, the lack of reasoning supporting this shift in policy implies some degree of arbitrariness.
Strict Buffer and Soundproofing Requirements Aren’t Needed
Any legitimate concerns caused by the sound recording industry could likely be remedied without needing the proposed zoning amendment, though a special-use permit may be a wise idea. Of course, any permit is a burden when no permit was previously required. But as the city adds thousands of new residents and becomes denser, sound recording studios could once again find themselves the subject of complaints. While reigning in on any actual or perceived nuisances caused by the sound recording industry could be handled through private litigation and the enforcement of a general noise ordinance, a special-use permitting scheme offers the flexibility of setting standards based on unique circumstances.
Uses that must receive a special-use permit are viewed as causing some additional burden on the surrounding community that isn’t present with the ‘by-right’ uses. This could be louder noise, increased traffic, or additional wear on the infrastructure. The city will approve the special-use permit if certain conditions are met to mitigate such added burdens to the community.
Sometimes those conditions are mentioned, such as a 300 foot distance requirement and soundproofing, and sometimes the decision is left to the discretion of the governmental body based on general conditions applied to each applicant’s situation. 
There’s simply no need for a categorical rule of 300 feet and soundproofing. If studios themselves are emitting too much noise, then either the city’s noise ordinance should govern or neighbors should initiate private nuisance actions. Of course the noise ordinance is also a categorical rule that isn’t tailored to unique situations and no one enjoys being involved in litigation. A special-use permitting scheme that either directly sets noise levels for sound recording studios or allows discretion in figuring out any appropriate remedies for each applicant could be beneficial. It would allow for tailored rules and would provide a basic defense against private nuisance actions by neighbors.
The proposed amendment states that sound recording studios operate at all hours of the day. Well if noisy nightmen are a nuisance then use restrictions dictating hours of operation could be tacked on to noise requirements in applicable situations.
This, of course, could still result in more arbitrary rules, but it may make the process more fair for each studio by allowing for more precise rule-making. Ultimately if an industry feels that it isn’t causing any problems then any increased regulation feels like an unnecessary burden. But as Atlanta continues to add more residents and neighborhoods become denser, recording studio regulations may once again be up for debate.
 Hamilton, Marci A. RLUIPA Is A Bridge Too Far: Inconvenience Is Not Discrimination. Fordham Urban Law Journal. Volume 30 Issue 4, at p. 968 (2012). <http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2424&context=ulj>  City of Atlanta v. Wansley Moving & Storage Co., 267 S.E.2d 234, 245 Ga. 794 (Ga., 1980)
Categories: Featured, Housing, Land Use, Law and Government, Zoning
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