File this under "fait-accompli."
The developer of the sprawling new Monarch 716 student housing complex that just opened on Forest Avenue near SUNY Buffalo State has asked the city to allow it to change its approved plans to build a one-story clubhouse instead of two.
There's just one catch – it's already built, with just one story.
That appears to leave little choice for the Planning Board, which is unlikely to direct the company to complete its original two-story plan. But it could put the developer in hot water with the city.
Attorney Corey Auerbach of Barclay Damon LLP, who represents the developer, said that what happened is "less nefarious than it sounds."
The company, DHD Ventures of Rochester and Charlotte, N.C., says it realized during construction that a 16,000-square-foot facility was too much and unnecessary. According to the filing with the city Planning Board, the extra space didn't serve any function and no use was identified for the second floor. So, "a decision was made to reduce the building to one-story," according to the filing.
Auerbach said DHD submitted its request months ago to the city's Office of Permits and Inspections, which he said initially told the architects that it could approve a simple revision administratively as part of the building permit and plan review process.
City Permits and Inspections Commissioner James Comerford said his office has no such authority. "We met with them and informed them that because of the change they needed to go back to the Planning Board, which they are, next week," Comerford said.
In fact, Louis Petrucci, assistant director of housing and property inspections, said the city informed DHD in February that "they were not building according to the plans and would have to submit new plans."
In the meantime, Auerbach said that the city allowed the developer to complete and begin using the clubhouse under a limited "certificate of occupancy," but only for its business and leasing office. Recreational activities, including two bowling lanes, lounge areas and other activities, are not allowed until the Planning Board weighs in.
There's no other change to the 8,550-square-foot building's footprint or the rest of the 10-building project, located on 10.8 acres at 100 Forest. "It's all been in consultation with the city throughout the process," Auerbach said.
According to Petrucci, there's no such thing as a "modified" or "limited" certificate of occupancy, and the developer can only use the offices and bathrooms "for a limited time period so that students moving in could be processed."
And since there's no certificate of occupancy, he added, that "impacts both their financing and the lease agreements that they have with their tenants."
If the Planning Board does approve the change, the city can also fine the developer in an amount ranging from $500 per day to doubling the permit fee. If the Board rejects the application, Petrucci said, "the building cannot be used and an order to vacate will be issued."
Auerbach insisted that the developer acted properly, and that plans were submitted and regular inspections performed.
"There was absolutely nothing out of the ordinary on this," he said. "Was their timing off? Should they have moved a little bit quicker? Maybe. But everything was above-board."