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Three years after the Gaia Building opened, the first tenant may soon be moving into the ground floor space developer Patrick Kennedy built to help him win city approval to add extra floors to one of the city’s most controversial buildings. 

The long-vacant 10,000-square-foot first floor, a sore point in Berkeley politics, has drawn the ire of one city commission and prompted two city councilmembers to announce they’ll be introducing new city regulations this month that will change the way the city handles developers who promise public cultural space in exchange for bigger buildings. 

Building that cavernous unfinished space helped developer Patrick Kennedy capitalize on state and city laws and the machinery of government to build the extra floors of apartments that enriched his business. Even more perplexing, under the present state of city ordinances, as Berkeley Planning Manager Mark Rhoades told an Arts Commission forum two years ago, the regulations in place when Kennedy inked his Gaia Building deal merely obligated the developer to build the space, not to rent it out. 

By promising to offer 19 apartments for lower- and low-income tenants and reserving the first floor for cultural uses, Kennedy convinced the city to award him the lot and relax the downtown five-story cap, allowing him to tack on greater height and build more apartment units under city and state “density bonus” programs. The Gaia Building’s height remains controversial. While Kennedy says seven stories, critics have charged its actual height is that of a nine-story-plus structure, the difference consisting of in-apartment loft space. 

Today, the first floor windows—one dominated by a real estate agency sign—are shrouded with translucent plastic. Behind them, work has begun in the open-framed concrete-floored shell. On the floors above, 12 of the 91 apartments—not 19—are reserved for tenants who earn 80 percent and less of the median area income. And city councilmembers, commissioners, and staff cite the project as an example of what not to do. 

What happened with Gaia won’t happen again if Dona Spring and Kriss Worthington succeed in passing the measure they plan to introduce to their fellow city councilmembers March 16. 

“Basically, the way it is now, there’s nothing we can do to compel developers to have an arts space,” Spring said. Under the Spring/Worthington proposal, “If an owner left cultural space vacant for more than two months, the building would be declared in non-compliance.” 

When Anna de Leon closed her celebrated Anna’s Jazz Cafe on University Avenue, she thought she’d be moving soon into elegant new quarters in the Gaia building under a new name—the Blackbird. 

A year passed, and the space she thought was hers remained vacant, lacking even the interior walls and wiring that would let her begin installing furniture and fixtures. However, within the last few weeks construction crews have started building out the raw space and putting in the improvements that will finally allow De Leon to reopen after 13 months in limbo. 

The first would-be occupant of that same space went bankrupt before construction of the building was completed, and two others—a pair of nonprofit theatrical troupes that would have shared a 142-seat theater adjacent to De Leon’s café—were never able to take occupancy because Kennedy never built the theater. 

“It’s unacceptable for a developer to reap the benefits of the bonuses without providing the benefits,” Worthington said. “The Gaia Building is a case study of what shouldn’t happen,” he said, adding that city staff members will be working out ways to give bite to their proposal. 

Worthington said one possible solution is a city ordinance barring a developer from renting out additional apartment space acquired through the arts bonus until community groups are using the cultural facilities. 

Why did the Gaia Building’s other projects fail? “The bottom line,” Spring said, “is basically that Kennedy wanted too much money for the space to be genuinely accessible to the civic arts groups who are struggling to find performance space in the downtown arts district.” 

Kennedy acknowledged that the high costs had kept nonprofit tenants out, and said he saw no reason why commercial tenants shouldn’t qualify for the bonus if they serve the city’s cultural community. 

Which goes a long way to explain why city officials pointed to the Gaia Building saga as the very thing they wanted to avoid when they gave preliminary approval to plans for the new nine-story Seagate project on Center Street. 

By the time developers and city staff pitched that proposal to the Civic Arts Commission last week, Seagate was holding a signed 20-year lease from the nonprofit Berkeley Repertory Theater for the 9,000 square feet of density bonus performing space they’d incorporated into their nine-floor Center Street edifice—and Berkeley Rep was committed to make their performance hall available to other civic groups 100 days a year. 

Seagate also claims another 2,000 square feet of arts bonus space for a public art gallery they’re providing in a corridor that leads to the performance space and connects on through the middle of the block to Addison Street. 

The Seagate deal also requires the owners to provide an annual audit, proving the arts space has been fully and properly used for artistic performances and rehearsals. Nothing similar was required of Kennedy. 

As the city’s largest developer of what urban planners call “infill development,” Kennedy and his Panoramic Interests have become lightning rods for critics of the large “mixed use” projects that have spouted up along the city’s major arteries—projects that grow larger than city regulations would otherwise allow because of the inclusionary (“low income”) housing and cultural density bonuses. 

Kennedy said the Gaia Building, his tallest to date, is the only project for which he applied for additional size under the cultural density bonus. 

The building has been plagued by troubles. For months last year, a plastic shroud covered the rear of the building after mold was discovered behind leaking walls and crews stripped and replaced the affected exterior. Crews this week were wrapping up similar repairs at another of his nearby downtown developments, the Berkeleyan. 

Recently community activist Barbara Gilbert stood up at a city council session and asked why the building wasn’t being charged for city property tax assessments all the city’s other property owners were being forced to pay. When that dust settled, Kennedy owed $72,000 in back taxes on the building–plus another $90,000 on some of his other buildings—which he promptly agreed to pay. 

Kennedy’s first projected Gaia Building “cultural” tenant—intended as the sole occupant of the ground floor and the source of the structure’s name—was the Gaia Bookstore, a venerable New Age institution driven by high rents from its home of 13 years on North Shattuck Avenue in March, 2000. But economic realities—including the cost of furnishing their new quarters and the loss of customers to Internet discount booksellers—forced the store into bankruptcy before the building was finished. 

For replacements, Kennedy recruited two theatrical troupes along with De Leon. 

“We were supposed to be co-anchor tenants along with Shotgun Players,” said Gary Graves, company co-director of Central Works Theater Ensemble. “It was supposed to open in July, 2002, and we even scheduled performances. But the (construction) work was never done, and it never became what it was supposed to be, a theater. 

“We lost faith that anything would happen, and we had no written agreement with him, despite our best efforts. We couldn’t continue in a place where we couldn’t be sure anything would ever be completed.” De Leon said she didn’t have a written lease until two months ago. 

Central Works briefly used the unfinished Gaia Building space for rehearsals before relocating to their present quarters in the Berkeley City Club on Durant Street. “We’re very happy with the facilities there, as is our audience,” he said. 

Graves said Kennedy cited high construction costs—estimated at a million dollars—as the reason for not completing the theatrical installation, an account the developer acknowledges. “My guess is that the problems came because the building was designed and completed before the recession,” Graves said.  

Like others in the city arts community, the theatrical director is reluctant to criticize Kennedy. “He’s a patron,” the director explained. “It’s a delicate matter.” 

No one from the Shotgun Players returned calls from the Daily Planet. 

With the Gaia building’s bottom floor vacant for almost two years, arts commissioners and others are wondering what’s going to become of a large block of space that was supposed to meet the needs of a city filled with groups eager to have a venue but unable to come up with the big bucks needed to realize their dreams. 

David Snippen, chair of the city’s Civic Arts Commission, says the Gaia Building highlights a current weakness in Berkeley’s procedures for dealing with new development. 

“The Arts Commission wasn’t involved at all” in the process that led to the construction of the tallest downtown construction project in recent decades. 

Even the Seagate project, hailed as a model of compliance with the cultural and inclusionary bonuses, came to the Civic Arts Commission last week as a fait accompli. 

The problem, says Snippen, is that the city still hasn’t drafted ordinances precisely defining the rules governing the award of additional square footage under the cultural density bonus. “That’s something that has to be done by the city staff, and every time someone gets started, they either get reassigned or they quit,” he said.  

Planning Commissioner Rob Wrenn agrees. “The Land Use element of the plan was adopted in December 2001, and [author] Andrew Thomas began writing the implementation proposal. Then he left, and different members of city staff have been assigned to work on it, but they’ve all left or been reassigned. We’re been through five or six different drafts.” 

In the latest version, Wrenn said, no new downtown construction would be allowed over seven stories, including inclusionary and cultural density bonuses.  

Snippen and his fellow arts commissioners want enforcement language written into city regulations to give them a role in reviewing prospective tenants for cultural bonus space, as called for in the Land Use Element. “That’s our next major project,” he says. 

Spring, Worthington and the arts commissioners all want the space to go to nonprofits. 

“One of the things we learned from the Gaia Building is that the whole idea of the cultural density bonus was to provide for public use,” Kamlarz acknowledged. “One of the problems is that the building was designed to fit one group, the bookstore, and we’ve learned not to have space that’s designed solely for one group.” 

In the Seagate proposal, the 9,000 square feet of performance space under Berkeley Rep’s control includes two separate halls, Kamlarz said, “so two different groups can use it at once. We want space that can be used simultaneously by different groups.” 

Meanwhile, Kennedy says he’s installing the walls that will block out both the theatrical space and the Blackbird and installing the restrooms that will serve both. Anna De Leon is ready. “Once Patrick gets everything in, I can be ready to open in a month,” she said, pending inspections and the approvals needed to get her new liquor license.