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Questions Arise Over Gaia Building’s Use Of Cultural Space By RICHARD BRENNEMAN

Tuesday November 22, 2005

Complaints about alcohol sales and possible city code violations have raised new questions about the Gaia Building, the tallest structure built in downtown Berkeley in recent years. 

At the very least, developer Patrick Kennedy, whose Panoramic Interests built and owns the structure at 2116-2120 Allston Way, will have to apply for a modification of the city use permit issued before construction began. 

On a broader policy level, the latest developments at the Gaia Building raise new questions about the bonuses that allow developers to erect structures larger than city codes and plans would otherwise allow.  

The problems surfaced after Anna De Leon, proprietor of Anna’s Jazz Island, a jazz club on the building’s first floor, contacted state and city officials to raise objections to a series of events at the building. 

According to the use permit on file with the city, said Deputy Planning Director Wendy Cosin, one room on the mezzanine level should have been reserved for an administrator’s office, and two more rooms were supposed to be used for literary events by the Gaia Bookstore, which was slated to be the original tenant. But instead the mezzanine is now used by a commercial food service, Glass Onion Catering, for various group events. Glass Onion also leases a section of the first floor where San Francisco’s The Marsh theater group has recently staged some productions. 

“We told Mr. Kennedy he needs to go to ZAB to amend his use permit. He needs to tell us exactly how he intends to use that area, and that needs to be reflected in his use permit,” said Cosin on learning of the discrepancy after De Leon raised her protest. “We have never approved a catering use in that area.” 

The ZAB Kennedy will face is a different body from the one that approved his original plans. The board’s nine current members are taking a much harder look at the bonuses that have allowed buildings to grow more massive and taller than would otherwise be allowed by city plans and codes. 

“We’ll have a lot of questions,” said ZAB member David Blake. 

 

Dinner, drinks, fires 

What triggered De Leon’s letters was the announcement that The Marsh intended to serve wine and other refreshments before and after their performances, with Glass Onion doing the catering. 

The jazz club owner said she raised objections with Kennedy, in part because she thought she had an agreement with him that her club would have the exclusive right to serve alcoholic beverages for cultural events in the building, including those in the Gaia Cultural Center, as the ground floor theater and upstairs spaces are now called. 

De Leon also complained to the state bureau of Alcoholic Beverage Control (ABC) after a woman holding a glass of wine she’d been served at a theater event walked into Anna’s on Aug. 26. 

Karyn Nielsen, supervising investigator for licensing with the ABC’s Oakland office, said she investigated de Leon’s complaint and discovered that the theater had not asked for or received the kind of one-day special liquor sales license often granted to non-profit organizations for fund-raising events. 

“They were supposed to get permission from the police department and they didn’t,” she said. 

As a result, Nielsen said, she sent the theater a letter notifying them that they could not obtain one-day licenses for any events held in the building.  

De Leon also asked city officials if the theater and mezzanine areas met fire safety and disability access codes. Fire Marshal Gil Dong, who met with Kennedy and toured the areas in question, concluded that while the building itself met all the relevant codes, group events in the mezzanine still required the presence of a fire department official unless gatherings there were officially approved by ZAB. 

“The intended use was not included in the plans, which call for offices with a maximum occupancy load of 21. When it’s changed to a dining hall, we need to have occupancy numbers to determine the exiting requirements” in case of an emergency, said Dong. 

 

Bonuses and buildings 

The Gaia Building got to be as tall as it is in part because developer Patrick Kennedy took advantage of a section of city code that allowed developers to qualify for more size than would otherwise be allowed in exchange for providing space for otherwise undefined cultural uses. 

The so-called cultural density bonus, combined with another bonus that allows for increased size in exchange for providing reduced rent “inclusionary” units for lower-income tenants, allowed the Allston Way structure to rise above the five-floor limit codes called for in the downtown area. 

But the ground floor and mezzanine levels of the building stood empty long after tenants had filled the apartment spaces in the floors above. 

Gaia Books, a small New Age bookstore in Kensington, was looking for new quarters and agreed to act as the cultural tenant when Kennedy proposed the building. The store gave the building its name, and its promised presence sold ZAB and city councilmembers on the height. But by the time the new building opened, the store had gone out of business. 

A succession of prospective tenants looked at the stark, unfinished interiors and found they couldn’t afford the substantial costs required to ready the space for occupancy. 

Finally, Kennedy invited de Leon, who operated Anna’s Jazz Cafe in a building he had constructed on University Avenue, to move in. She closed the restaurant in February 2003, hoping to be opening in her new quarters in a few months. 

But delays, including negotiations over the transfer of her liquor license, delayed the opening for 13 months until May of this year. 

While many in the arts community thought that “cultural space” should mean that tenants would be non-profits, city code specified only cultural use, not corporate structure, which still rankles City Councilmember Dona Spring, who had supported Kennedy’s plans. 

Two years ago, Spring tried to change the bonus law to restrict its application to non-profit cultural institutions, “but the Mayor resisted,” she said. 

And while Spring said she likes de Leon and her club, “What’s the difference between what she’s doing and a microbrewery that has music? We have lots of bars with music, and what makes that a cultural use? But it was approved by the ZAB and it’s done now.” 

“There was never a requirement that the entire area” of the bonus space “would be restricted to non-profit use,” Cosin said. “We did require that the theater be in use at least 30 percent of the month, with a requirement of 15 days per month for cultural use of the remainder of the ground floor and mezzanine.” 

Developer Kennedy dismissed the incident as a dispute between tenants. 

“It’s more growing pains than anything else,” he said. 

As for De Leon, he said, “I believe there’s some confusion.” 

De Leon, in turn, points to a letter signed by city Planning Manager Mark Rhoades in June 2003, allowing her club “to serve all permitted food and beverages to all entities in the cultural center ... both on the main floor and the mezzanine. These spaces will not be used for cooking or be part of the cooking or bar facility in any formal sense, but food and alcoholic beverages may be brought to and consumed in the theater and mezzanine spaces.” 

Spring says the whole affair leaves a bad taste, especially about the city’s application of the cultural bonus. “All it’s resulted in is bad buildings and bad feelings,” she said. And, she says, community members are talking about dealing away with the cultural bonus altogether..›