The tallest new structure to be built in Berkeley in 30 years opens in June. But it will be opening without meeting the zoning requirement that made its size possible.

The California city allows developers to exceed height limitations if their structures are home to cultural entities such as theaters or art galleries. The seven-story Gaia Building, named for a bookstore, earned its height bonus by signing the bookstore up as a tenant. Before the building was finished, however, Gaia bookstore went bankrupt.

Critics complain that if the zoning board was going to grant the height bonus--which lasts for the life of the building--they should have demanded guarantees that the bookstore would survive. Instead, says Clifford Fred, a former planning commissioner who helped write Berkeley's downtown plan, the developer is "getting a two-story height bonus for an empty storefront with a use to be determined later."

Developer Patrick Kennedy says the void will be filled by a performance space that will be home to a theater company called Shotgun Players. That group only stages a few performances a year, but Kennedy pledges to open the space for other events such as readings and concerts.

The mixed-use building will contain office space and 91 residential units. Since 20 percent of the residences will be reserved for those with low incomes, Kennedy thinks his critics ought to be satisfied.