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While the City Council is set to resolve one battle of that structural war known as the Gaia Building, other conflagrations still confront city officials and citizen commissioners. 

The council is scheduled to act Tuesday on a request by city planning and legal staff to approve an agreement resolving a long conflict over the use of the first two floors of the high-rise at 2116 Allston Way. 

But once that’s done, there’s still work ahead for a multi-agency task force and for the panel that’s hammering out a new plan for downtown Berkeley. 

While other questions remain, the most immediate issue—the rules governing use of the building’s “cultural bonus space”—will end should the City Council adopt the compromise worked out with developer Patrick Kennedy. 

The cultural bonus, a vaguely worded provision of the current Downtown Plan, was created to encourage developers to create venues for cultural events in new downtown buildings in exchange for the right to make their projects taller than current height limits would otherwise allow. 

Kennedy was the first to use the bonus, aided by a City Council eager both for more culture and more housing to revitalize an ailing city center. 

In return for creating 10,000 square feet of cultural space, he won the right to add two additional floors to the building, making it the tallest structure built in Berkeley since the Power Bar building. 

But the project has been controversial from the start, as documented in hundreds of emails and letters to and from city officials obtained by this newspaper by a request under the California Public Records Act. 

When critics and city officials questioned the way he was using the space, Kennedy (a graduate of Harvard Law School) adroitly contested every point, causing Deputy Planning Director Wednesday Cosin to lament in a February email, “Kennedy is trying to work the system again and is not forthcoming.” 

But sharp lawyering, perhaps aided by pointed questions from city councilmembers with relatives eager to use the space, has forced a resolution that would end efforts by the Zoning Adjustments Board (ZAB) to hold hearings that could have revoked a city use permits for the space. 

It is that settlement the City Council will consider Tuesday. 

This article looks at some of the highlights of the long-running dispute. For a fuller account of the documents, see the newspaper’s web site at www.berkeleydailyplanet.com. 

Key issues 

Two key issues may have foreordained the conflict-ridden morass from which the city is working to extricate itself: the city’s failure to implement specific cultural bonus policies and the pressure to allow for-profit businesses to occupy the space in the Allston Way edifice. 

While the 1990 downtown plan created the concept of the bonus, it also called on the city to adopt enabling legislation to spell out the specific requirement in city zoning code amendments. 

While the Civic Arts Commission adopted a set of provisions, the Planning Commission and City Council failed to follow up. 

Though at least one member of the citizen panel that drafted the 1990 plan has said that the intent was to create space for non-profits, city staff specifically approved the use of the Gaia Building space for a profit-making organization, the Gaia bookstore that gave the structure its name. 

A New Age retailer, the store offered author lectures and classes that drew on a passionate base of supporters who flooded ZAB and the city with letters urging approval of the project and appeared to testify on its behalf. 

The loudest opposition came from preservationists, who fought to save much-altered historic buildings on the property, including the original home of Berkeley Farms creamery. They sought and won a structure of merit designation by the Landmarks Preservation Commission which was overruled by the City Council. 

One of the project’s supporters was City Councilmember Dona Spring, who represents the downtown. She has since emerged as one of the project’s most vocal critics, along with Anna de Leon, another Gaia cultural space tenant and graduate of Boalt Hall School of Law. 

Before the building’s opening, changing economics of retailing had driven Gaia Books out of business, leaving the bonus space vacant and unfinished. 

The space remained vacant as a series of potential non-profit tenants proved unable to raise the funds needed to fit out and furnish the unfinished interior shell. 

Kennedy, the owners of a catering company and de Leon were able to craft the uneasy compromise that exists today, with de Leon in control part of the ground floor and Glass Onion Catering owners Gloria and Tom Atherstone in control of the rest of the two-floor cultural space. 

De Leon had been a tenant at a Kennedy building on University Avenue when her landlord invited her to move to his new Allston Way building. But a series of delays, the last resulting from an objection to her liquor license by a Gaia apartment dweller, blocked her move until she was able to open her for-profit Anna’s Jazz Island in May 2005 in the eastern part of the ground floor. 

The Atherstones created a new for-profit entity, Gaia Arts Management, to lease and operate the remainder of the space, finding their first part-time tenant in The Marsh, a San Francisco theatrical troupe looking to expand its operations into the East Bay. 

Kennedy fitted out the remainder of the ground floor as a theater with movable seating so dinners and other events could be held, and The Marsh began an irregular performances schedule in August, with the catering company also using the venue for dinners, parties and other events. 

The first troubles surfaced Nov. 10, when Fire Marshal Gil Dong contacted Kennedy after learning that events were being held on the second floor, despite the fact he hadn’t applied for the requisite city permits. 

Missing permits 

As recounted in a subsequent memo by City Manager Phil Kamlarz, Dong ordered a “fire watch” for the five upcoming scheduled events on the mezzanine. “Patrick was also advised that after December 16, 2005, he would be required to possess the proper Assembly Permits and obtain a Temporary Certificate of Occupancy to use the second floor for events.” 

On Nov. 14, Deputy Planning Director Wendy Cosin emailed Dong, Planning Director Dan Marks, Deputy Fire Marshal Wayne Inouye, Planning Manager Mark Rhoades and Building Official Joan MacQuarrie that Clif Bar, a Berkeley-based company, was planning a Dec. 2 reception in an area without permit, presumably the mezzanine, on Dec. 2. 

Another event, a reception for Berkeley Repertory Theater, was scheduled that weekend. 

While Dong would allow a fire watch for the Berkeley Rep event, the city wasn’t inclined to allow further events without providing accurate second-floor plans and applications for the permits, as well as a detailed account of a specific performance standard for the space. 

Kennedy submitted vague plans in an improper format three days later, meeting with MacQuarrie’s prompt rejection. 

A day later, Cosin emailed Dong to urge him to allow events to continue until the permits were obtained: “When I head about proposals for a benefit for Hop-a-long [sic] Animal Rescue and a holiday party for Clif Bar, a business that we are desperately trying to keep in Berkeley, I see a lot of pressure to make it work as long as he does what we tell him to do.” (Emphasis added.) 

While Kennedy wanted an occupancy rating of 300 for the second floor, Dong fired back, calling the number “not appropriate,” and declaring that 31 was the proper figure. Kennedy had also never responded to the order to post fire watches and, as a bottom line, no events could be held without the fire department-issued assembly permit. 

There was also the matter of an illegal fire exit sign posted at a too-narrow stairway and the lack of required fire extinguishers. 

On Nov. 21, Kennedy emailed Cosin claiming “we had approval of plans showing assembly use all along,” approved by the Fire, Building and Planning departments with an approved capacity of 320 in the mezzanine. 

Nonetheless, he promised new plans. 

The next day, Kennedy filed to modify his use permit so he could change the plans submitted with a June 2003 letter by de Leon and signed by then-Planning Director Carol Barrett, outlining the performance standard that remains in force today. The revision would allow conversion of a never-built office for classroom purposes and create a food preparation and utility room for catered events. 

The following day, Kennedy emailed Dong a list of four upcoming events, a bar mitzvah and the Hopalong and Clif Bar parties planned for both the main floor and the mezzanine and a Dec. 16 corporate party on the main floor only. 

Kennedy noncompliance 

Kamlarz described what happened next in a March memorandum: Kennedy “was notified that a ‘fire watch’ was required for the remaining events; that he needed to email Fire Marshal Gil Dong the security company that was hired to provide the fire watch, and to post the occupancy load of 133 on the 2nd floor for the events. Patrick did not complete any of the requests.” 

Instead of hiring the legally required trained fire watch, the developer had an employee of his management company attend the events. In a later email he contended he didn’t know of the special requirement. 

As the battle over permits continued, conflict arose on another front. 

On Jan. 7, police were summoned to the theater space after a private party for a 15-year-old turned into a debacle with unruly youths climbing out the second-floor level windows. As police shut it down, an angry guest hurled a bottle at police as they tried to control the angry crowd eager to get in. 

Two days later, de Leon would file a four-page complaint with the Zoning Adjustments Board, laying out the her complaints about Kennedy and Gaia Arts Management. 

On the Jan. 10, de Leon emailed Councilmember Spring, asking for help in protecting her business from unruliness next door, and the Daily Planet ran excerpts of de Leon’s complaint. 

The next morning, Kennedy emailed Cosin to complain about the article, and to ask why the city had failed to respond to complaints he’d made about de Leon’s permits. 

That same afternoon, Aurora Theater Development Director Daria Hepps emailed Councilmember Gordon Wozniak, saying the story “heightens our concern about having our big fundraiser there March 27. Could you please look into this with the appropriate people at City Hall and let me know if this is something I need to be concerned about ... It would be really devastating if we had to cancel or move the event at the last minute.” 

Left unstated was the fact that Wozniak’s spouse, Evie, is a member of the theater’s board of directors. 

Eight minutes after the Hepps email, MacQuarrie emailed Cosin with an even more critical announcement. Building Inspector Malcolm Prince had just discovered that no temporary certificate of occupancy “had been issued or requested (for the first floor performance space), so he (Kennedy) is occupying the space in violation of the code.” 

Sixteen minutes later, Fire Marshal Dong emailed Kennedy, writing that he didn’t have a fire permit because he hadn’t requested the inspections needed to get it—and which he couldn’t receive anyway because he lacked temporary or permanent certificates of occupancy for either of the floors. 

Further, Kennedy had listed different occupancy figures in his applications for his fire assembly permit than he did on the other permit applications he had filed with Cosin’s department. 

A fire inspection would also reveal that standpipe for an emergency fire department hookup on the second floor was in a location inaccessible in the event of a fire. Kennedy denied that it was problem, though Dong would warn on Feb. 8, “Essentially, there is no hookup to fight a fire on the 2nd floor.” 

Noisy concert 

Meanwhile, Mario Capitelli, a nephew of City Councilmember Laurie Capitelli booked space on the ground floor to hold a series of youth rock concerts. 

On the morning of Feb. 12 after the first concert, Kennedy emailed Cosin to say “Event a success with no major incident. No cop or fire calls ... Laurie [Capitelli] apparently drop [sic] in. Can give you more details.” 

Cosin replied: “Very glad to hear it ... Now you have to wrap up details with the first floor FAST!” 

Minutes later de Leon emailed Cosin and Mark Rhoades to report that rock bands had drowned out the jazz musicians performing in her club with noise far louder than had been permitted at her old club on University Avenue. 

Three minutes later, Cosin emailed Kennedy. “I must report now that I did get an email from Anna complaining again ... I have a difficult time weighing the merits of her argument, but I will continue to work with her.” 

Kennedy forwarded a report from his building manager, Steve Walker, who had reported on “a significant noise bleed that travels up the elevator shaft and also through the building. Mario mentioned that he has dealt with noise reduction successfully at every venue he has worked at. But unless we can come up with an alternative solution, this issue will continue [sic] arise with the Gaia tenants.” 

The noise problems led Councilmember Spring to ask city staff to see if a noise meter could be installed in the apartment area courtyard which would enable tenants to call the city when noise exceeded appropriate levels. 

De Leon emailed Rhoades and Cosin on Monday, Feb. 13, that “without volume controls for the rock and roll shows, I will be unable to book quality music in my venue.’ With two more concerts booked for Feb. 25 and March 5, she wanted to know how the city regulated noise levels. 

The city, however, has no ordinance governing indoor noise, she learned. 

Councilmember Linda Maio emailed Marks with her comments on de Leon’s pre-concert email to Kennedy. “Dan, this description ... is not what we gave a cultural bonus for ... Can you tell me how we are proceeding with clearing up what use is permitted, not permitted, in the cultural space.”  

Cosin replied to Maio that live bands were a cultural use, open to the public. 

Resolution 

The complaints from de Leon had led concerned ZAB members to hold the first of a series of discussion about the Gaia Building’s use of the cultural space, raising the specter of revoking its use permit and reopening just what could and couldn’t be done with the space. 

Kennedy threatened legal action, citing the now-three-year-old letters signed by Carol Barrett and Anna de Leon and a deed restriction he had filed at the city’s insistence that specifically stated that for-profit uses were allowed in the space. 

Kennedy initially interpreted the performance standard in the letters as mandating that 30 percent of the time the space would be used for performance-related uses, which could include rehearsals and set-up time, with for-profit private parties and events allowed the rest of the time. 

De Leon, the author of the letters, insisted that the 30 percent was actually just performance time, with rehearsals and preparation requiring additional time. Though he initially objected, Kennedy has conceded the point in the proposed agreement now before the council. 

In the meantime, the developer has submitted the required plans and applied for the needed permits to bring the performance space into compliance with city ordinances. He has also agreed to relocate the standpipe for safe firefighter access. 

Whatever happens next will be closely watched from many quarters, including two city bodies. 

The question of bonuses is still under consideration by a joint task force of ZAB and the Planning and Housing Advisory commissions, and the issue will be on the minds of the Downtown Area Plan Advisory Committee, which is now preparing an update of the 1990 plan, which will cover an expanded downtown area. 

Finally, construction of the second building to incorporate the cultural bonus, the Berkeley Arpeggio (nee Seagate Building), is scheduled to commence at the end of August across from the new Berkeley City College Building on Center Street. 

Because of the lessons learned from the Gaia Building, city staff, commissioners and the council imposed conditions that restrict the space to performance-related use—with the nonprofit Berkeley Repertory Theatre as the occupant, with the obligation to allow other community groups to make use of the space.