It seemed like a clear-cut case of bait and switch.

A Queens community board recently accused the developer of the 5Pointz luxury towers in Long Island City of misrepresenting the project after he built an additional 112 units, 30 percent more than what he originally announced.

In a letter to the City Planning Commission dated July 29th, Community Board 2 chairperson Denise Keehan-Smith said the developer was seeking to “legalize the changes made to the building construction” and that he has “sought every way to thwart Community Board review.”

But according to a planning application submitted in May, the request does not have to do with the number of units as the community board's letter suggested and as was recently reported. Instead, G&M Realty, helmed by father and son developers Jerry and David Wolkoff, are currently seeking a “minor modification” which would allow for the changed position of certain street wall locations for the two luxury apartment towers at 22-44 Jackson Avenue.

The estimated $400-plus million project has already topped off and the units are basically completed, although not move-in ready, according to Jerry Wolkoff, who added that he and his development team informed the city about the additional units roughly a year ago. The project is receiving a 421-a tax exemption, which means 20 percent of the units will be below-market rate.

“It shouldn’t be a surprise," Wolkoff told Gothamist. "I believe they should award me. I’m doing something that costs me more but that satisfies the public that needs things like this.”

For the community board, the confusion may have arisen from what the developer said versus what the city actually approved. In 2013, the City Planning Commission signed off on a special permit that allowed for a total build out of 1.2 million square feet. During public hearings as well as in zoning applications, the developer said he planned to build "approximately 1,000 units." The special permit approval even notes that number in a section that gives background on the project.

But in special permit applications, dwelling unit counts are not within the scope of the Planning Commission's review, according to Joe Marvilli, a Department of City Planing spokesperson. He noted, however, that under the city's uniform land use review procedure (ULURP), the City Council has the authority to impose additional conditions, including the number of units.

However the Council did not do that with the 5Pointz application.

Wolkoff maintained that the size of the buildings has not changed. He said the development team had merely decided to eliminate some of the planned three-bedroom units to make way for more studio and one-bedroom units.

He likened the zoning process to determining the dimension of “a box,” and that the number of dwelling units were in fact flexible. City officials, he added, only “care that it’s going to fit within that box.”

The reason for the bump in units, he explained, was to accommodate the growing number of young professionals who are looking to live Long Island City because of its proximity to Manhattan. He argued that making the switch was to the city’s benefit.

According to Wolkoff, the community board was holding him to an unfair standard.

“I said 'approximately',” he said. “I didn’t know how many units I was going to do.”

Still, for some, the significant hike in units marks another betrayal by an opportunistic developer with a history of breaking the rules and public promises. The 5Pointz site was once an iconic complex of graffiti-laden factories. In 2017, as part of a landmark trial, a federal jury found the developer guilty of illegally destroying the work of 21 graffiti artists as part of a 2013 demolition. A judge later awarded the artists a $6.7 million settlement. Wolkoff has since appealed the decision.

In 2016, union workers erected an inflatable rat in protest at the construction site after they said Wolkoff reneged on his pledge to use 100 percent union labor for the project. Wolkoff told Gothamist he said he would "do my best" to hire all union construction workers.

More recently, The City reported last week that David Wolkoff and three members of Community Board 2, including Keehan-Smith, held a private meeting at a restaurant on July 16, an arrangement that many criticized for a lack of transparency.

Keehan-Smith, the community board chairperson, did not respond to a request for an interview.

Samuel Stein, an urban studies expert and the author of the book "Capital City: Gentrification and the Real Estate State,” said that from a planning standpoint, the current tensions at 5Pointz suggested that "the city [planning] department doesn't really do planning, they do permitting around private development."

He argued that both the number and size of units are important to know for city planning purposes. For example, a loss of three-bedrooms would suggest that families in the neighborhood would be underserved. "You’re basically guaranteeing that it’s high-income single people or couples without kids rather than larger households," he said.

"The city should have a stricter process for this," he added. "There's a difference between 1,000 and 1,100 in how this plays out. If all [developers] did this, that would have a pretty big impact."

UPDATE: The original headline inaccurately described the extra units as "luxury." The developer is using the 421-a tax program, which means 20 percent of the units will be below-market rate. The latest version also includes a new statement from Wolkoff, disputing that he ever promised to run an all-union construction site.