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When Patrick Kennedy got permits to develop the Gaia Building on Allston Way, he was allowed to build two stories more than the downtown height limit allowed, in exchange for the promise of using the ground floor and mezzanine for cultural purposes. 

Since the building opened, however, the fire department, tenant Anna de Leon, city planners and councilmembers have clashed with Kennedy on a number of fronts, especially questioning the extent to which Kennedy has kept faith with his agreement to provide cultural opportunities. 

The council may have averted a lawsuit threatened by Kennedy, by passing a resolution Tuesday which Kennedy says appears to conform to his view on the question. 

The proposed resolution, first discussed behind closed doors because of the threatened lawsuit, was read to the council by Councilmember Linda Maio minutes before the council’s scheduled 11:15 p.m. adjournment. Neither councilmembers nor the public were provided with written copies of her motion.  

The resolution: 

• Affirms a ruling by a former planning director that 30 percent of the scheduled time for the first floor and mezzanine must be devoted to actual performance. 

• Requires that in addition to the 30 percent time devoted to actual performance, an unspecified amount of time should be allotted to preparation and rehearsal time. 

• Asks city staff to propose specific parameters for cultural and non-cultural use, on which the council will then make a determination.  

With Councilmember Max Anderson absent, the council voted its approval 

of the first three parts of the resolution 6-1-1, with Councilmember Dona Spring abstaining and Councilmember Kriss Worthington voting in opposition. Another part, however, provoked a heated dissent from Councilmember Dona Spring. 

This was the statement that the cultural bonus also allows non-cultural incidental uses though prioritizing the scheduling of cultural uses. 

The council approved this provision separately with Spring and Worthington voting in opposition. Spring contended that the ruling by former Planning Director Carol Barrett did not approve or even mention non-cultural uses for the space covered by the cultural use bonus. 

In a phone interview Thursday, Kennedy said he had not seen the final draft of the council resolution, but from what he understood initially, it appears consistent with an agreement between himself and the former planning director. 

In a phone interview Wednesday, Councilmember Kriss Worthington told the Daily Planet he opposed the council resolution for several reasons. One is that the staff report explaining the item on the council agenda was not available in advance of the meeting and neither was a draft resolution. 

“They should have told the public what action they were thinking of taking,” Worthington said. 

Worthington also questioned whether the council, in ruling on the question of cultural use, was pre-empting the Zoning Adjustment Board, which usually rules first on use permit controversies, subject to appeal to the City Council. The topic was before ZAB at its last meeting because of complaints filed by Gaia ground floor tenant Anna de Leon, proprietor of Anna’s Jazz Island, and ZAB was expected to rule on the question at its next scheduled meeting on Thursday.