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LET THERE BE no doubt: razing the Gaiety Theatre would break the law. The Boston Zoning Code, which governs planning and development in the city, specifically forbids the destruction of any theater in the Midtown Cultural District, which includes the Gaiety. The zoning clause, Article 38, Section 21, states that city officials "shall not issue a change of use or occupancy permit for any Theater within the Midtown Cultural District," which comprises the downtown Theater District and portions of Chinatown. Not only that, the provision says, but officials may only grant "a demolition permit where the Theater or building is unsafe."

This violation is cited among a host of others in pending legal action aimed at stopping Kensington Place from becoming reality. Two lawsuits filed in Massachusetts Land Court allege that the City of Boston — its zoning commission in particular — ignored regulations and allowed Kensington Investment to define its own parcel size so that the developer would end up exempt from the city’s 15-story height restriction. One of the suits was brought by Gaiety preservationists, development watchdogs, a Chinatown advocacy group, and three city councilors. The other suit was filed by the Glass Slipper strip club, one of the last Combat Zone holdouts, which would be displaced by the 30-story tower through eminent domain.

Lee Eiseman, of the nonprofit Gaiety Theatre Friends, which has waged a two-year battle to save the theater from the wrecking ball, loves old stages. He remembers "crawling around" the Gaiety with fellow theater buffs back in the ’70s, when the playhouse was reduced to showing kung fu flicks. "It was a dramatic space," Eiseman says. At the time, the stage had the look and feel of a European opera house — intimate and quaint, with horseshoe-shaped boxes, balconies, and busts of "Gaiety girls." Over the years, Eiseman has kept tabs on the building. In the late ’90s, he began contacting one of its owners — Lewis, the director of Kensington Investment — to request a glimpse. "I called him twice a year and said, ‘Would you let some old theater buffs see the Gaiety?’" Eiseman says. He never got a reply.

Then came Kensington Place. In October 2002, Eiseman noticed a small newspaper item announcing that Kensington Investment was seeking to demolish the Gaiety and replace it with a rental tower. The Boston Landmarks Commission (BLC), the city’s historic-preservation agency, had issued a 90-day "demolition delay" — the standard for any building that the BLC finds "significant" — and Kensington was unveiling its proposal at a public meeting. Eiseman attended, as did about a dozen preservationists, neighborhood activists, and artists. He says, "We all showed up and said, ‘Wait! This is an important building.’"

That certainly seems to be the case. The Gaiety Theatre has received many of the requisite preservation classifications. It ranks on the State Register of Historic Places, as well as on the Inventory of Historic and Archaeological Assets of the Commonwealth. The Massachusetts Historic Commission (MHC) has also determined the theater is eligible for the National Registry of Historic Places.

Then there is the Gaiety’s cultural legacy. According to Frank Cullen, founder of the Boston-based American Vaudeville Museum and author of the forthcoming Vaudeville, Old and New: An Encyclopedia of Variety Performers (Routledge), preserving the Gaiety would commemorate the city’s pioneering role in vaudeville and burlesque entertainment — the variety-style performances popular in this country in the early 1900s. Back then, the Gaiety served as the focus for traveling acts. It became a kind of "meeting ground for America," says Cullen, "the place where anyone of any ethnicity could see his own." Its marquee trumpeted Italian musicians, Irish comedians, German acrobats, English singers, and Russian dancers.

Equally important was the theater’s history of promoting black entertainment. During the 1920s Jazz Age, the Gaiety billed one African-American performer after another, names that were making it big in New York during the Harlem Renaissance. At the same time, the theater became a hub for the famous black vaudeville company known as Theater Owners Booking Association, run entirely by African-Americans. These acts were not welcome to appear anywhere else in New England. Notes Cullen, who serves on the Gaiety Friends advisory board, "Not only is this the last vaudeville theater left in the city, but it is the last vaudeville house that played black shows. That’s amazing."

Equally amazing is the theater’s architectural quality. Designed by the noted architect Blackall — who crafted 22 Boston theaters in the 1900s, all but four of which have been destroyed — the Gaiety is not "an ornate wedding-cake kind of theater," says architectural historian Steve Jerome, a Gaiety Friend. But when Blackall created the Gaiety, he experimented with the latest engineering techniques. He designed the auditorium so all of its approximately 1500 seats would offer unobstructed views. He mapped out 40 fire exits, a fire-safety record for the time. And because he made the theater for vaudeville, it has some of the finest acoustics around. In November 2002, engineer David Griesinger, who invented SurroundSound, measured sound quality inside the Gaiety when touring the theater with the Gaiety Friends. Griesinger discovered that the forgotten theater’s acoustics rival those of the city’s best musical venues, including Jordan and Symphony Halls.

All in all, the Gaiety seems "like a gem," says Jerome. "You cannot build a theater like it today."