E-Mail This Article to a Friend GAIETY THEATRE Is Friday demolition day? BY DAVID S. BERNSTEIN

The 96-year-old Gaiety Theatre, which borders Chinatown, may come down as soon as this Friday, to make room for the high-rise Kensington Place development. If so, it will bring to an irreversible end the efforts by passionate defenders of art, history, culture, and neighborhood to fight the intertwined interests of city planners and Kensington developers, who have tried every trick to reduce the historic building to rubble. (See "Curtain Call," News and Features, October 15, 2004.) The last hope of staying the wrecking ball comes Thursday morning at 10, in the courtroom of Justice Keith C. Long of the Massachusetts Land Court. That’s when the owner of the Glass Slipper, a strip club abutting the Gaiety, gets a hearing on a last-minute injunction for a restraint order to stop the demolition.

Friday became D-Day a week earlier, on December 10, when Boston’s Inspectional Services Department granted the Kensington developers a demolition permit. The permit does not go into effect for seven days, in order to provide time to notify abutters — such as the Glass Slipper, which stands to be taken by eminent domain. The strip club’s owners are contesting the legality of the development, with a trial scheduled for March 25.

The Glass Slipper is fighting the contorted legalisms of the Boston Redevelopment Authority (BRA) and the Boston Zoning Commission, through which Kensington obtained authorization to build its 30-story structure — twice the allowable height — and to take the Glass Slipper. Those issues are unlikely to be resolved quickly; but, the judge could allow the Gaiety demolition to go forward while the ultimate scope of the development remains unsettled.

Those who wish to preserve — and resurrect — the Gaiety will try to convince Long to save the building while the lawsuit over the development plans continues. That decision, it appears, will rely primarily on the odd but crucial question of whether the Gaiety is a theater. The Boston Zoning Code prohibits destruction of theaters in the Midtown Cultural District — and adds that no demolition permit can be granted unless the building is unsafe, which nobody claims about the Gaiety.

The BRA has claimed that the Gaiety is no longer legally a theater, since it has not been used as one for 20 years. The BRA also points to a September 1993 decision by the Boston Zoning Board of Appeal to grant the removal of "theater" from the occupancy description.

But on the application for the demolition permit filed last month, obtained by the Phoenix, the Inspectional Services Department typed in "Theatre" under "Legal occupancy of use." The application is signed by a representative of the owner, Kensington, as well as by the supervisor of plans for the Boston Zoning Division (who even wrote in "midtown cultural dist" above his December 8 signature).

In any event, the building is obviously a theater, say the Gaiety Theatre Friends, a group working to save the historical structure. "A theater isn’t defined by a fancy marquee and decorative facades, but by the performance space inside," says Lee Eiseman, a member of the organization. He says that the theater was structurally sound as of last spring, and could easily be turned back into a working theater.

Long was scheduled to take a tour of the Gaiety on Wednesday morning in preparation for Thursday’s hearing, but barred media access to the viewing. Long has not seemed especially sympathetic to the cause thus far, says Steve Jerome, Gaiety Theatre Friends president. Most notably, in November the judge dismissed another plaintiff group (which included Gaiety Friends and three city councilors) trying to block the Kensington development, ruling that it had no legal standing.

This is especially crucial now that another plaintiff, ONI Collective Inc., which runs an art gallery in the affected area, agreed to drop its case on November 23 — the day after Long dismissed the other plaintiffs. (Terms of the agreement were not made public.) The Glass Slipper remains as the only party to the suit; if its owners agree to a settlement with Kensington, that would remove all legal barriers to the new development.

In fact, some speculate that the removal of the other plaintiffs precipitated the sudden application for the demolition permit — for which Kensington technically could have applied at any time since January, when it gained final approval from the BRA and Mayor Thomas Menino. (Another possible reason: the recent decision by the fire department that Kensington must add sprinklers to the building if it stays up any longer.)

To keep the lawsuit alive if the Glass Slipper gives in to an offer from Kensington, three owners of Ritz-Carlton condominiums overlooking the site have filed to join as plaintiffs. Long still must decide on that. Also, any decision by Long could be appealed to the Supreme Judicial Court. But the threat of the demolition of the Gaiety is now closer to reality than ever.