When Violations Become “Accepted Conditions”: The Ongoing Fight Over YKS Bungalows at 40 & 44 Church Road
Dear Friends and Neighbors
In Mountaindale, a quiet residential section of the Town of Fallsburg, the proposed YKS Bungalows / Yeshiva Ketana of Satmar dormitory project has become a focal point of dispute that extends beyond land use preferences or neighborhood character. The central issue before the Planning Board has increasingly shifted toward a more technical question: Can a 102 student R-2 dormitory project be approved based on future promises of compliance when significant portions of the project appear incomplete, unverified, or previously constructed without permits?
At the center of the controversy are two adjacent properties: 40 Church Road and 44 Church Road. The applicant proposes to convert the site into a seasonal religious educational campus with dormitory housing for up to 102 students during a ten-week summer period. However, the Planning Board record now includes not only public objections, but also the applicant’s own written admissions and engineering submissions, most significantly the April 23, 2026 “Responses to Public Hearing Comments” prepared by MA Expediting LLC on behalf of YKS Bungalows LLC, with legal representation by attorney Steven Barshov, Esq., and engineering review by Forward Engineering, PLLC. These documents acknowledge prior violations and code deficiencies while simultaneously requesting approval conditioned on future correction.
Illegal Construction and Acknowledged Noncompliance
One of the most significant admissions in the record appears in the applicant’s response regarding 40 Church Road: “There was illegal construction at 40 Church Road.” The submission further acknowledges that bathrooms and bedrooms were added prior to proper permitting and that violations remain part of the property’s history. The applicant does not dispute that prior construction occurred before approvals were issued. The response characterizes this as a matter for enforcement rather than planning review:“Enforcement of the prior violations themselves is the responsibility of the Building Department and the courts.” It further acknowledges that prior operations were not consistent with existing approvals.
For opponents, this raises a key concern: the project is not being evaluated on a clean compliance baseline, but rather on a record that includes acknowledged prior unpermitted construction.
The Central Strategy: Deferred Compliance
Across the applicant’s submission, a consistent pattern appears that violations will be corrected under future permits, safety systems will be installed prior to occupancy, engineering certifications will be provided later, accessibility features will be completed in subsequent phases and that conditions of approval will resolve remaining issues. This includes items such as: fire alarm systems, sprinkler systems (NFPA 13R), stair and deck corrections, plumbing fixture compliance, occupancy load certification, sewer trench remediation and roadway and bus circulation improvements.
Critics argue that this framework effectively asks the Planning Board to approve the project first and verify compliance afterward.
Accessibility: “Campus Basis” Theory vs. Code-Based Requirements
One of the most contested technical issues is accessibility compliance under the New York State Building Code and Existing Building Code following a change of occupancy from R-3 (single-family use) to R-2 (dormitory use). In response to public concerns, the applicant’s engineer proposes a “campus-wide accessibility approach.” Under this theory accessibility features are centralized at Building 1 (44 Church Road). Not every structure must independently contain accessible features and 40 Church Road would rely on accessibility provided elsewhere on the campus. The submission states: “The observation… that wheelchair access was not visible at 40 Church Road is correct as to that one structure.” Instead, the applicant relies on accessibility improvements located at 44 Church Road, including a new ADA-compliant bathroom, an accessible sleeping unit, exterior accessible routes, ramps with 1:12 slopes and accessible synagogue facilities. However, the response does not cite a specific provision of the 2025 NYS Building Code or NYSEBC explicitly authorizing a “campus basis” method for satisfying R-2 dormitory accessibility requirements across multiple buildings and parcels.
Key Unresolved Issue: 40 Church Road Itself
Despite being the structure undergoing the most significant change of use, 40 Church Road is not independently brought into compliance for accessibility in the submission. Instead, compliance is effectively shifted to other buildings within the proposed campus. Critics argue this raises a fundamental question: Whether New York State Building Code permits an R-2 dormitory occupancy to rely on accessibility located in a separate building, on a separate parcel, not yet legally merged. The applicant acknowledges that the parcels are still legally separate but argues they will be merged as part of the approval process.
Parcel Merger and Legal Status of the “Campus”
Public deed records confirm that 40 and 44 Church Road remain separate tax parcels.
The applicant does not dispute this. Instead, the submission states the parcels will be merged as part of the approval process. The Planning Board may evaluate them as a unified campus and that timing of the merger does not affect the analysis. However, critics note that many of the applicant’s core assumptions depend on treating the properties as a single legal campus before the merger exists in law. This affects accessibility compliance assumptions, occupancy distribution, fire and egress planning and infrastructure analysis
Occupancy Calculations and Lack of Final Code Approval
The applicant proposes a total occupancy of 102 students, distributed as 54 students at 40 Church Road, 24 students in Building 1 at 44 Church Road and 24 students in Building 2 at 44 Church Road. While earlier proposals contemplated higher occupancy at 40 Church Road, the applicant states the number was reduced following engineering review. However, the submission does not include finalized, code-stamped calculations within the Planning Board record demonstrating minimum square footage per occupant, ventilation compliance, plumbing fixture ratios. sleeping unit compliance or egress capacity verification. Instead, the applicant states that final certifications will be provided prior to occupancy.
Accessibility Calculations Not Provided
A key technical gap identified in public submissions is the absence of total required number of accessible units, Type A / Type B unit calculations under NYSBC, confirmation that one accessible bedroom satisfies required ratios and documentation of compliance across all structures. The applicant describes one accessible room but does not provide a formula-based justification demonstrating sufficiency under code.
Egress, Decks, and Fire Safety
Residents raised concerns about decks and exterior staircases allegedly constructed without permits, now functioning as part of primary egress routes. The applicant acknowledges that Forward Engineering identified structural issues with these elements and states corrective work will be completed under permits prior to occupancy. The submission also commits to installing NFPA 13R sprinkler systems, fire alarms, smoke and CO detectors, exit signage and emergency lighting. However, at the time of review, these systems are not yet installed, and compliance is presented as future work.
Infrastructure and Site Safety Concerns
Additional public concerns include visible sewer trenches on site after winter thaw. Allegations of prior student occupancy during incomplete construction conditions. Bus parking on Church Road and private driveways and emergency vehicle access limitations. The applicant responds that sewer systems were installed and tested, trenches have been backfilled, bus traffic is limited to seasonal arrival/departure periods, revised plans include on-site turnaround areas and signage and roadway improvements will be completed.
The Legal and Procedural Pattern
Across nearly every section of the submission, the same consistent approach appears: #1 deficiencies are acknowledged, #2 corrections are proposed, #3 compliance is deferred to future permits and lastly, approval is requested based on conditional remediation. This raises a central procedural question for the Planning Board: Whether site plan approval can lawfully be granted when compliance with key code requirements is not yet demonstrated, but instead projected through future engineering and construction commitments.
Conclusion: A Record Defined by Deferred Compliance
The current Planning Board record for 40–44 Church Road does not rest on a single disputed issue. Instead, it reflects a cumulative set of unresolved questions involving acknowledged prior illegal construction; unresolved accessibility compliance methodology; lack of code-cited justification for “campus-based” compliance; absence of full occupancy and accessibility unit calculations; reliance on post-approval remediation and parcel-level legal separation despite campus-level analysis. The applicant maintains that the project is lawful, correctable, and approvable under conditional review.
Opponents argue the opposite that the Planning Board is being asked to approve a high-intensity R-2 dormitory system before essential compliance elements have been fully demonstrated in the record.
As the review process continues, the core issue is no longer simply what the project proposes but whether the evidentiary record is sufficient for approval under New York State planning and building code requirements as they exist today, not as they may be completed in the future.
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