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The ongoing saga of the Gaia Building took a new turn Thursday night when members of the Zoning Adjustments Board (ZAB) voted to reopen the thorny issue of culture. 

The board will look at just what the city intended when it let developer Patrick Kennedy construct a bigger building in return for adding two floors that were supposedly devoted to use for cultural activities. 

“That’s not a good outcome,” Kennedy told Deputy Planning Director Wendy Cosin after the vote. 

“The fact that they’ve agreed to hold a public hearing is great,” said Jos Sances, chair of the city’s Civic Arts Commission (CAC). 

“I’m very pleased,” said Anna de Leon, who has emerged as the principal antagonist of Kennedy, her landlord. De Leon owns Anna’s Jazz Island on the ground floor of the Gaia Building, 2116 Allston Way. 

Kennedy was allowed to add two extra floors of apartments to the building in exchange for building the two floors under the city’s ill-defined “cultural bonus,” which awards greater building size in return for creating space for culture in downtown Berkeley. 

One issue before ZAB is just what qualifies as cultural use? 

The second issue is the so-called 30 percent “performance standard,” a nebulous term spelled out in a June 6, 2003, letter endorsed by Carol Barrett during the time she served as the city’s Planning Director. 

According to the interpretation now used by the city, the figure means that if the cultural bonus space is used for performances 30 percent of the time, then it may be used for other kinds of events for the remainder of the time. 

At present, the two cultural floors have two tenants. 

De Leon’s Anna’s Jazz Island occupies part of the ground floor; the rest of the floor and the mezzanine above are leased to Gaia Arts Management, a firm created by Gloria and Tom Atherstone, who own Glass Onion Catering in West Berkeley. 

That company has been leasing out space to The Marsh Berkeley, a local extension of a San Francisco theatrical company, and for a variety of public and private events including parties, meetings and rock concerts. 

By the time Thursday night’s meeting had ended, the board had voted 6-2-1 to limit the use of the mezzanine floor to uses that have already been approved by ZAB under the existing use permit. Members Bob Allen and Raudell Wilson voted against the measure, and Carrie Sprague abstained. 

The board passed 8-0-1 (Sprague abstaining) two other motions, one that would allow the use of the second or mezzanine floor—which had been halted because no certificate of occupancy had been issued—and the other to hold a hearing on the much-debated performance standard. 

“This is a very serious issue that goes right to the heart of the [use] permit,” said ZAB Secretary and Principal Planner Debra Sanderson before the vote. 

The use permit mandates that half of the mezzanine floor be reserved for non-profit cultural groups and requires that uses be consistent with ZAB’s intent and subject to possible review by the board and the CAC. 

“I don’t think that would allow catering to continue, but it is not covered by the existing use permit anyway,” said board member Rick Judd in making the motion to enforce the existing permit. “I have no problem considering a use permit modification, but the public has never had the opportunity to bring its position before us.” 

Allen and Wilson said they were happy with the way the building is now being used. 

“I personally enjoy having something at the Gaia Building,” Wilson said. 

Allen said the current uses are much better than the floors’ originally intended use as a home for the Gaia Bookstore, a new age venue that closed before the building was ready. 

“Let’s not manage them down to the last degree,” Allen said. 

By restricting the floors to a narrow range of uses, Allen said the board could be setting itself up for repeated hearings. 

“I don’t feel the owner has to proceed if he deviates from ZAB,” said Judd. “This whole project has a way of shape-shifting, it appears . . . given how many generations of small changes” the proposed uses have gone through. 

One voice that wasn’t heard during the meeting was that of Allen Matkins, Kennedy’s San Francisco attorney. 

Matkins rose to speak during the discussion but was silenced by Chair Chris Tiedemann, who noted that the session was not a public hearing, and that Matkins had failed to address the board during the public comment period at the start of the meeting. 

The decision to reexamine the cultural bonus came as good news to Sances and the other CAC members who attended Thursday’s meeting. 

The commission has been critical of Kennedy and the way the city has permitted the building to be used for uses other than those defined in the permits. 

“The fact that there will be a public hearing is great,” Sances said. “It will give the public a chance to weigh in. He [Patrick Kennedy] got two extra floors of apartments out of it, and it would be great to have the space for cultural events.” 

De Leon, whose letters of protest were written after she said rock concerts and a loud party disrupted performances at her cafe, said she was pleased with the outcome. 

“All I asked was that they live up to their commitments,” she said. 

Kennedy was clearly angry. 

“So do I blow up the building? It sat empty for four years, and I moved heaven and earth to find tenants,” he said. “The Marsh theater has held more performances in the last four months than the Berkeley Rep and the Aurora Theater—and maybe more than both combined. I’ve brought a jazz club downtown, and I’ve added life to a downtown that needs it—all with the blessings of the planning department and staff who said I was in compliance. To continue in pursuing this and closing down The Marsh is a counterproductive move.”