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The Gaia Building on Allston Way was back before the council Tuesday. 

After much debate—and perhaps some backroom doings—the council voted 5-2 to comply with a court order to rescind an action it took in April 2006 regarding the use of “cultural space” at the building. 

The basis for the dispute that has raged for at least five years was that the city gave the building’s developer, Patrick Kennedy, permission to add height to the Gaia Building above zoning limits in exchange for a promise to use the first two floors for cultural uses. 

The questions that came before the council in April 2006 were: How much cultural space and how much time devoted to culture are needed to satisfy the requirement for cultural space, and what is the definition of culture? 

The resolution that the council rescinded Tuesday had defined cultural space according to a 2003 letter by a former planning manager.  

Berkeley resident Patti Dacey and her attorney Anna De Leon—owner of Anna's Jazz Island, located in the Gaia Building—sued the city in Alameda County Superior Court, alleging that the council had abused its discretion in defining the amount of time and space that was to be used for cultural activities instead of letting the Zoning Adjustment Board rule first on the question. 

Siding with the plaintiff and De Leon, the court ordered the council to rescind their 2006 resolution. 

While Acting City Attorney Zach Cowan, who had lost the case in court, argued that the resolution should be rescinded, he also said in a staff report that the council should instruct the zoning board on the interpretation of cultural space at the Gaia Building.  

De Leon and Dacey were at the meeting and argued vehemently that doing so would be a continued abuse of council discretion and that the council role should be limited to doing what the judge had ordered: rescinding the original resolution. 

Kennedy no longer owns the building, but manages cultural activities there as a leaseholder. He spoke to the council and hinted that he might sue the city if the council refused to communicate with the zoning board on the question of cultural uses at the building.  

“It's imperative to include other information,” Kennedy said. 

With Councilmember Linda Maio recusing herself because her husband rents retail space from Kennedy (although she voted on the original resolution) and Councilmember Laurie Capitelli absent, the council was unable to get five votes either for rescinding the resolution alone, without instructions to ZAB (the original vote to rescind had Councilmembers Darryl Moore, Max Anderson, Dona Spring and Kriss Worthington voting in favor; Councilmembers Betty Olds and Gordon Wozniak voting in opposition; and Mayor Tom Bates abstaining) or to postpone the question until the next meeting despite the judge’s order. (The vote to do that was Bates, Olds, Worthington and Wozniak in favor and Moore, Anderson and Spring abstaining.) 

At that point in the meeting, with no decision made, Bates called for a break, saying he wanted to allow the captioner (captions are typed for deaf and hard of hearing persons) a break.  

During the break, while some members of the public speculated that the council would continue to discuss the item when it returned, Councilmember Anderson was heard to say of his colleagues: “They’re more afraid of Kennedy than the judge.”  

De Leon and Dacey both told the Planet they were incredulous that the council could ignore a judge's order and promised to be back in court soon. 

As it turned out, that was not necessary. It appeared that some members of the council had caucused during the break and a vote was taken to take up the question again. 

This time, the council voted 5-2 to rescind the April 2006 resolution, without giving any advice to the Zoning Adjustments Board. It would be up to the owner of the property to bring the issue back to the ZAB, councilmembers said. 

Moore, Anderson, Spring, Worthington and Bates voted in favor of the motion to rescind the resolution; Olds and Wozniak abstained.