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When is a cultural event not a cultural event? That seemed to be the dilemma the Berkeley Zoning Adjustments Board grappled with last week at a public meeting while reviewing whether the Gaia Building—now owned by real estate magnate and Tribune Co. proprietor Samuel Zell—was violating its use permit. 

In the end, the board, at the request of Zell’s Equity Residential corporation, decided to give owners 180 days to hire a marketing firm to promote the Gaia Arts Center for cultural events. 

A towering presence amid a string of low-rise buildings in downtown Berkeley, the building has been mired in controversy since the city approved the project almost a decade ago and granted developer Patrick Kennedy two additional residential floors over the zoning limit in exchange for 10,000 square feet of “cultural use,” in the form of the Gaia Bookstore and community center. Since Equity bought the building, Kennedy’s firm has leased the space on the lower “culture” floors and rents it out for various events. 

After the bookstore went out of business, the zoning board in May 2002 modified the use permit to allow performance spaces, galleries and a cafe on the first floor of the building and offices on the mezzanine level. 

Berkeley City Planner Wendy Cosin told the board last Thursday that the Planning Department had accepted what she called a “performance standard” allowing some incidental non-performance cultural uses, based on a series of letters exchanged between then-Planning Director Carol Barrett and Anna de Leon, who owns Anna’s Jazz Island, a first floor Gaia building tenant of Kennedy’s firm. 

De Leon, an attorney, represents three Berkeley citizens who this spring won a lawsuit alleging that Kennedy’s current use of the space did not conform to the conditions on his original use permit, and that the city council had improperly allowed this use without getting ZAB to approve modifications to those conditions. 

“There are different recollections of what the Barrett letters meant,” Cosin told the board. “The Barrett letters state that non-cultural uses would also be allowed ... This is where Ms. de Leon and I differ.” 

De Leon told the board that Barrett had clarified to her in an e-mail in November 2006 that only cultural use would be permitted. 

“We never discussed any unlawful non-cultural uses for the place,” she said. 

Cosin said that the same e-mail thread also included a letter from Barrett that said the cultural bonus was granted when the use was the Gaia bookstore—a retail use with occasional performances such as readings. 

Barrett, Cosin said, had also added that she had “never expected only cultural uses,” the interpretation which DeLeon and her clients dispute. 

The zoning board had previously decided that Barrett did not have the authority to approve such a performance standard, and, in the absence of a use permit modification request from the then-owners, the ZAB asked staff to set a hearing for possible use permit revocation. 

A month later, the Berkeley City Council voted that city staff did indeed have the authority to approve performance standards and incidental uses, and the pending revocation proceedings before ZAB were suspended. 

In December 2006 the council voted to establish rules for the cultural space as per the planning staff’s interpretation of the Barrett letters, and DeLeon’s suit followed. 

The Alameda County Superior Court sided with de Leon’s clients and issued a writ of mandate in March 2008 ordering the City Council to rescind the resolution, which it did at a public meeting two months later. 

“The project meets minimum performance standards but it’s not what we expected,” Cosin said on Thursday about the Gaia Arts Center’s failure to become a hotbed of culture. 

“It’s showing DVDs and has art galleries but very little theatre, which is a big disappointment. The new owners are coming in with a more clean slate and have offered to do more than the previous applicant.” 

A staff report asserted that the Gaia Arts Center has nonetheless met the basic standard for providing cultural use. 

The report lists the cultural events in the building as a total of 50 free movies projected from DVDs, seven performances and 15 rehearsals by the Berkeley Rep and Wilde Irish Theater Group, 10 playwriting classes sponsored by the Berkeley Rep and 12 private events. 

Jim Meeder, the attorney representing Equity Residential, said his clients believed that their tenants were in compliance with the cultural use requirements. 

“The DVDs are shown on Tuesday night. They are free classic movies, and we believe film is a cultural art,” he said, adding that he could not provide records of any attendance. 

“Nevertheless, if it’s possible, we would like to find out whether there’s more cultural use out there and promote the use of the Gaia Arts Center,” he said. 

The Gaia Arts Center is rented for wedding and receptions, but these are not considered cultural use. 

Board Chair Rick Judd wondered aloud about the Sunday services held in the building by Christ Church of Berkeley and Mosaic, a religious community: “My understanding is that we have churches there, are we allowed to have churches under this use permit?” he asked Cosin. 

“We have not considered that,” she replied. 

De Leon complained that showing movies from DVDs without a public performance license from the copyright owners was a violation of the copyright law. 

“Showing illegal movies is not cultural use,” she said, adding that no one ever turned up to watch them. “Theaters have told me they would love to rent the space, but weddings and bar mitzvahs obviously generate a lot more money.”