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The Gaia Building, the heart of one of Berkeley’s longest-running political and cultural dramas, is heading back for another look by the same city panel that approved its construction. 

While no formal action is planned for Thursday night’s meeting, a majority of the city’s Zoning Adjustment Board members indicated earlier this month that they’re very unhappy with what’s been happening with the first two floors of the building at 2116 Allston Way. 

The immediate issue is the forbidden use of one of the structure’s two “cultural bonus” floors, for which developer Patrick Kennedy was allowed to add two more floors of apartments above—making the entire structure two floors higher than the five otherwise permitted. 

The Zoning Adjustments Board (ZAB), which approved the construction, will hear a city staff report on the use of the mezzanine Thursday from Deputy Planning Director Wendy Cosin. 

The report outlines a variety of options available to the board, with possible alternative findings that declare that the use of the floors either does or does not conform with policy and past ZAB and staff decisions. 

But City Manager Phil Kamlarz, in a letter dated March 15, written to the City Council in response to concerns from city councilmembers, repeated determinations by city fire and building inspectors that use of the mezzanine floor has been in violation of city permits. 

Kennedy “did not have the required permits and approval to use the second floor of the Gaia Building after December 16, 2005,” wrote Kamlarz. 

Furthermore, he said, the building lacks the required permit to allow occupants to run a catering business there, and no permits were sought for two rooms that were constructed on the mezzanine level. 

In addition, a rock concert held on the ground floor may have violated the area’s maximum capacity limit, which sets legal occupancy levels for public assembly and meeting rooms—and the Fire Department was notified by another tenant that the posted occupant load sign for the ground floor theater space had been changed from 96 to 222 without the department’s approval. 

When ZAB members had their initial look at the flap earlier this month, they were nearly at the point of taking action before they were reminded that no hearing had been scheduled nor had any notice of pending action been circulated. 

Thursday night’s discussion also won’t result in any action, but a board majority indicated earlier this month that they wanted to do something. 

Cultural wars 

The cultural bonus first appeared in the city’s 1990 downtown plan, but because no formal statute was enacted offering a precise definition of the term and the qualifications for its use, application has been more art than science. 

“The Gaia Building was our first application,” said Principal Planner Debra Sanderson, who serves as secretary to ZAB. “We learned a lot from the experience.” 

The tallest structure built in the city center in decades, the Gaia Building was erected only after a political and legal battle waged between developer Patrick Kennedy and preservationists. 

By agreeing to provide a 10,000-square-foot “cultural facility” on the ground floor and the mezzanine above, with the New Age Gaia Bookstore as tenant, Kennedy was allowed to add two additional floors of apartments. 

Opponents argued that the building was simply too massive, and that construction would require demolition of a historic Berkeley building—the old Berkeley Farms creamery. 

When it came time for a demolition hearing before the Zoning Adjustments Board at a Nov. 13, 1997, hearing, Landmarks Preservation Commission (LPC) Chair Robert Kehlmann had sent formal notice that the commission had found by an 8-0-1 vote that Kennedy’s building was too bulky and massive, and would adversely impact on the adjacent Roberts Studio Building, a city landmark built in 1934. 

Future Daily Planet Executive Editor Becky O’Malley and Doris E. Willingham, writing as members of the Committee for Neighborhood Preservation, opposed the demolition on the grounds that it violated the California Environmental Quality Act. 

When the demolition was nevertheless approved on May 6, 1997, the LPC acted again, using the provisions of the city’s Landmarks Preservation Ordinance on June 1 to declare the former creamery building a “structure of merit,” a landmark designation that takes into account subsequent alterations to the original building. 

Despite an appeal by the LPC and LPC commissioners O’Malley and Burton Edwards, the City Council voted to approve the demolition, which was completed in September. 

But the building’s would-be tenant, the Gaia Bookstore, was already defunct, thanks to New Age book buyers, who had abandoned bricks and mortar stores and transmigrated to the more ethereal World Wide Web. 

Tenants 

One of the central disputes centers on just what is the cultural bonus, and how can a building owner use the space thereby created? 

In approving the cultural use space for the Gaia Building, ZAB had issued a specific finding that “cultural facility” could mean a for-profit business, with the board to determine just who did or did not meet the requirements. 

With the bankruptcy of the bookstore and his would-be renter gone, Kennedy sought other tenants to fill the two empty floors. Two theatrical troupes considered leases but were unable to come up with the hefty sums needed to finish out the interior, a barren expanse of concrete, steel, ducts and coverless walls and ceilings. 

Kennedy was also the landlord to Anna de Leon, who operated Anna’s Jazz Cafe in one of the developer’s earliest buildings, at 1801 University Ave., and he contacted her about moving into his newest building. 

De Leon closed her cafe in early 2003 in anticipation of the move—a wait that was to last two years before she was finally able to open in the Gaia Building in May 2005. 

Another prospective tenant was Glass Onion Catering, a West Berkeley firm. Co-owner Gloria Atherstone emerged as the firm’s public voice before ZAB and in letters to the press. 

During the ZAB meeting earlier this month, both Atherstone and de Leon said they and Kennedy had a tentative agreement about the use of the space. 

But the plans fell apart, and de Leon was left with her restaurant—which finally opened last spring—and Atherstone and her husband Thomas took over the remainder of the space, including most of the ground floor and all of the mezzanine. 

Atherstone has been running private catered events in the building, and as a principal of Gaia Arts Management, has been renting out space for concerts, theatrical performances, fund-raisers and other events. 

De Leon protested to the city after she said crowds from private parties in November 2005 and last January disrupted events at her club, and again during a Feb. 11 six-band rock concert which found more than 100 sometimes rowdy youths on the sidewalk outside, upset because there was no more space inside. 

She, Atherstone and Kennedy all appeared at the March 3 ZAB meeting, where Kennedy and Atherstone depicted the troubles as a business dispute—an argument that seemed to convince a minority of the board, including Robert Allen and Jesse Anthony. 

“I think they can work this out,” said Allen. 

Conflicting visions 

But the larger issues remain and the board majority seemed to agree that something needs to be done about what’s happening in the building. 

“Could we set this for modifying the use permit so that this board sets the performance standard rather than having it be reset by the staff?” asked ZAB Chair Chris Tiedemann. 

As it stands now, city planning staffers, including former Planning Director Carol Barrett and Wendy Cosin, have expressed the opinion that the Gaia Building’s culture space needs to be used only by performance-related activities 30 percent of the time, with the remainder available for whatever permitted use the tenants chose. 

ZAB member Dave Blake said he had understood that the figure meant that 30 percent of the time the floors were in use they would be used for performances, and the rest of the time would be for related activities. 

De Leon said she had come up with the 30 percent figure in a letter to Cosin at Cosin’s request. 

She said it was because Cosin told her that typical performance venues devoted 30 percent of their time to shows and the remainder to preparing for them and related purposes—a significantly different interpretation than has since been applied. 

In a parallel effort, board members, the Civic Arts Commission and others will be taking a longer look at the bonus itself and what it means. Another group that may be looking into the bonus is the Downtown Area Plan Advisory Committee, which is charged with helping to prepare a new plan for the downtown area—including the arts district—as part of the settlement of the city’s suit against UC Berkeley stemming from the school’s Long Range Development Plan. 

Another edifice 

One of Kennedy’s most prominent supporters during his original fight to get the building built was Susan Medak, managing director of Berkeley Rep, which eight years later would become the largest recipient of “cultural bonus” work and performance space under the same law that enabled Kennedy to raise the Gaia Building above the five-floor downtown maximum. 

Medak called the proposal “an innovative approach to enriching the livability of our community” and “a model of innovation.” 

In approving the nine-story Arpeggio—formerly the Seagate Building—a luxury condo complex planned for 2041-65 Center St., city staffers said the developer was actually entitled to build to 14 stories downtown because of high construction costs, units reserved for moderate-income buyers and a total of 12,067 feet of cultural space. 

Most of the space would be used for rehearsals by Berkeley Rep, which has also agreed to rent out the hall at cost to other community groups for their performances. 

The use permits for the Arpeggio are much more explicit and restrictive, a result, Sanderson said, of the lessons the city is still learning from the Gaia Building.Æ