E-Mail This Article to a Friend GAIETY THEATRE Kensington wins another round BY DAVID S. BERNSTEIN

It was two strikes for the Gaiety Theatre on Tuesday, as Massachusetts Land Court judge Keith C. Long ruled in favor of developer Kensington Investment Co. on a pair of pending issues, bringing the demolition of the 96-year-old building closer to reality — even though additional voices have joined the chorus calling the entire process illegal.

The nonprofit Boston Preservation Alliance (BPA), which had previously remained silent about the Gaiety, submitted a letter to the Land Court in support of efforts to stop demolition. The Gaiety, which borders Chinatown, is not an officially designated historical landmark. The BPA spoke up now because of the city’s troubling machinations in providing authorization to Kensington, says the alliance’s president, Susan Park (see "Curtain Call," News and Features, October 15). "The case has not been made for demolition," Park says. "Process and precedent are extremely important to us."

Kensington has received permission from the Boston Redevelopment Authority and Inspectional Services Department to start taking down the Gaiety, as the first step in building a 30-story development. Its opponents — an incongruous mix of Chinatown neighborhood activists, theater historians, the owners of the Glass Slipper strip club, and residents of nearby luxury condos — argue that the city violated its own zoning codes in authorizing the Kensington project. For one thing, the code prohibits destroying any theater in that part of town. For another, the Boston Redevelopment Authority (BRA) granted Kensington a special authorization that requires a minimum of an acre of development to qualify. Kensington didn’t come close — until the BRA added in some little extras like the adjoining streets, which as public property shouldn’t be included, say Park and others. BRA spokeswoman Susan Elsbree told the Phoenix there was precedent for counting streets, but was unable to provide specific examples.

The Glass Slipper owners, whose property will be taken by eminent domain under the BRA-approved plan, are awaiting a March court date to argue all this — but Kensington wants to bulldoze the Gaiety in the meantime. Last Thursday, Long heard the Glass Slipper owners’ request for a restraining order against demolition; the hearing came one day after the judge took a tour inside the theater — but barred the public and press because of "safety concerns." On Tuesday, Long decided not to grant the restraining order. At the same time, he denied an attempt by three condominium owners at the Ritz-Carlton to join the suit against Kensington; Long had previously stopped other neighborhood residents — and three City Council members — from suing.

"As far as the law is concerned," said Kevin Patrick O’Flaherty, a Boston attorney representing Kensington, when reached Tuesday evening, "my client is free to proceed with demolition."

The Glass Slipper’s attorney could not be reached before press time, but others involved in the Gaiety case expected an appeal to be filed on Wednesday, in Massachusetts Appeals Court, along with a motion for an emergency injunction to stop demolition. Kensington attorneys had agreed last week to forestall demolition at least until 5 p.m. on Wednesday.

"I’m obviously disappointed," said Steve Jerome, president of Gaiety Theatre Friends. He is optimistic about the appeal, however — or at least the hope of an injunction. "There’s no compelling reason to demolish the theater before Christmas."