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The city may have dodged one bullet by going along with developer Patrick Kennedy’s notion of how much time to devote to culture at the Gaia Building—Kennedy threatened to sue the city over the question—but by doing so, the city may be running head-on into a lawsuit Kennedy tenant Anna de Leon has promised to file. 

At issue is the 1998 city decision to allow Kennedy to construct the Gaia Building at 2120 Allston Way two stories higher than normally permitted in exchange for a promise to use the first two floors for cultural offerings. 

At issue before the council on Tuesday was what constitutes “culture,” how much time Kennedy must provide cultural events at Gaia and who should decide these questions. The council voted 5-3 to approve a planning staff resolution, a six-page document distributed to the councilmembers at the beginning of the 7 p.m. meeting, that details how much time Kennedy is obligated to hold cultural events on the first two floors and what constitutes culture. 

Councilmembers Dona Spring, Kriss Worthington and Max Anderson voted against the resolution and Councilmember Linda Maio recused herself from the vote saying her husband, who now rents space from Kennedy, is negotiating to buy a storefront in a building the developer owns on University Avenue. 

A more complete discussion of the issue was to have taken place at the council’s closed session meeting on Monday. The public is not privy to what was discussed behind closed doors. 

“You’re being asked to modify a use permit for the developer,” de Leon told the council on Tuesday. “Only ZAB (the Zoning Adjustments Board) shall have the power to grant or deny use permits. The only power granted to council is the appeal process.”  

Dean Metzger, former zoning board commissioner, also argued that the correct venue to address changes to a use permit is the zoning board. “They can have a real public hearing,” he said. 

Councilmember Laurie Capitelli, however, argued that the council does have the right to make the decisions around the cultural requirements. “It would end up here” if appealed, he said. 

The resolution approved by council said it accepted the following “operator’s proposals”: 

• Ground floor theater space will be reserved for cultural use 51 percent of the weekend dates over one year plus rehearsal and setup time (80 days per year). 

• The theater space will be required to devote 30 percent of its time to performances, not including time for rehearsal and setup (109 days per year). 

• People who reserve the venue for cultural use can reserve 18 months in advance, but those reserving for non-cultural uses can reserve only 12 months in advance to give cultural groups priority. 

Jos Sances, member of the Civic Arts Commission, spoke to the council, contending that Kennedy’s original proposal to the commission was that the Gaia bookstore, which was to be the tenant in the building before it went bankrupt, would be hosting cultural events every night and that the expectation was 100 percent cultural use. 

Sances further argued against non-cultural use, which the council resolution allows. “Caterers and churches are not good uses,” he said. 

Further, Civic Arts Commission Chair Suzy Thompson wrote the council Dec. 4: “We find no record of the process by which 100 percent cultural use was changed to 30 percent cultural use, nor was the Art Commission ever consulted about this change …. If this is going to be the result of the zoning variance for cultural use—that developers receive big concessions form the city for uses that cannot be enforced—we must reconsider our positions on this issue.” 

“If the council does this, it will be the demise of the cultural bonus,” de Leon told the council. 

But developer Kennedy argued before the council that cultural uses in his building were subsidized by the profits from the receptions and dinners. And he lauded the use of his space by non-profit organizations that serve the homeless and people with HIV/AIDS. The Democratic Party also took advantage of the space, he said: “It was used for GOTV [get out the vote].”  

“Because of the influence of developers, we’ve changed our ruling,” Councilmember Max Anderson told the council. “ZAB never intended anything but 100 percent cultural use.” 

Reached Wednesday by phone, de Leon argued that by working with the developer on the resolution, city staff was doing his bidding. 

“I will be bringing suit,” she said, noting that when she was active as an attorney she sued municipalities 32 times, including Berkeley.