In the Matter of UNION FOR REFORM JUDAISM

October 15, 2019

CBCA 6457-FEMA

In the Matter of UNION FOR REFORM JUDAISM

Ernest B. Abbott of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,

Washington, DC; Wendy Huff Ellard of Baker, Donelson, Bearman, Caldwell & Berkowitz,

PC, Jackson, MS; and Jordan Corbitt of Baker, Donelson, Bearman, Caldwell & Berkowitz,

PC, Houston, TX, counsel for Applicant.

David Gillings, State Public Assistance Officer, Public Assistance Division,

California Governor’s Office of Emergency Services, Mather, CA, appearing for Grantee.

Maureen Dimino, Office of Chief Counsel, Federal Emergency Management Agency,

Department of Homeland Security, Washington, DC; and John Dimos, Office of Chief

Counsel, Federal Emergency Management Agency, Department of Homeland Security, Baton

Rouge, LA, counsel for Federal Emergency Management Agency.

Before the Arbitration Panel consisting of Board Judges DRUMMOND, LESTER, and

RUSSELL.

The Union for Reform Judaism (URJ) is a private non-profit organization that

operates Camp Newman, a multi-building mixed-use property in Santa Rosa, California. The

buildings at Camp Newman were severely damaged, and many destroyed, by wildfires that

occurred across Northern California in October 2017. URJ seeks arbitration under section

423 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act),

42 U.S.C.A. § 5189a(d) (West 2019), after the Federal Emergency Management Agency

(FEMA) denied its request for more than $60 million in public assistance (PA) funding for

Camp Newman. As permitted under Rule 611 of the Board’s rules governing this arbitration

(48 CFR 6106.611 (2019)), the parties have requested a decision on the written record, or

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through a “paper hearing” without live testimony, and each party has supplemented its

original written submission to the Board with additional briefing and evidentiary documents.

In accordance with Board Rule 613, this decision is being issued within sixty calendar days

after the submission of the last written brief in this arbitration, which was when the Board

closed the arbitration.

Factual Background

URJ acquired the Santa Rosa property in 1997 and soon thereafter began operating

a summer camp there for Jewish youth called Camp Newman, a camp that, in recent years,

has served more than 1400 campers each summer. Before it was damaged by fire in October

2017, the Camp Newman complex included multiple large and small open meeting spaces,

a dining hall for meals and large gatherings, a large amphitheater for live performances and

outdoor meetings, several smaller amphitheaters, a pool, and numerous cottages and other

buildings that were used for housing and overnight accommodations. URJ also owned and

operated the associated utilities and other facilities necessary for operation of Camp

Newman, including water, power, and wastewater treatment.

URJ utilized Camp Newman as a summer camp for only seventy-six days a year,

leaving the property available for other uses over the course of the remaining 289 days of the

year. URJ elected to make the property available for use by outside organizations during

those 289 days. If an outside organization wanted to reserve either a portion or the entirety

of the Camp Newman campus, it would enter into an agreement with URJ, titled “URJ Camp

Newman License Agreement,” in which the licensee would agree to pay a guaranteed

minimum license fee that URJ would calculate by reference to which part or parts of the

campus were being rented, the number of days of the group’s rental, and the number of

guests that the organization expected to bring to the campus. Under the license agreement,

the licensee was responsible for supervising its group and the group’s behavior at all times

and for providing trained individuals to supervise any specialized recreational activities areas

while activities were in progress.

Although, on occasion, a group of students or other individuals would come to Camp

Newman for a day trip, almost all of the license agreements involved overnight stays by an

organization’s guests in Camp Newman’s overnight accommodations of anywhere from one

night to eight nights. Licensees could have guests bring their own linens or, instead, could

rent linens and towels from Camp Newman. Based upon the Board’s review of various

licensing agreements and subsequent invoices that URF submitted as part of this arbitration,

it appears that minimum guaranteed license fees for rentals involving overnight visits

typically (with a few exceptions) ranged anywhere from $4000 to $60,000, depending on the

size of the anticipated group and length of stay, with a per-night-per-person fee typically

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breaking down to a rough average of somewhere between $55 to $80 per-night-per-person.

Actual revenue for an eight-day rental could, and did, run as high as $120,000. The

organization signing the license agreement would be responsible for paying URJ for its

group’s use of the property and for each of its guest’s overnight accommodations.

URJ has submitted documentation showing that, at times, it has allowed groups to use

Camp Newman free of charge, as a donation from URJ. It has submitted letters from the

Sonoma County Fire District, the Sonoma County Sheriff’s Office, and Sonoma County’s

Fire Prevention Division indicating that URJ donated Camp Newman for their use, without

charge, for various training and other activities over the course of several years, as well as

copies of license agreements showing two groups that were recently allowed to use Camp

Newman without charge.

In 2016, various organizations used the Camp Newman property, through rental

agreements, for a total of 228 days, in addition to the seventy-six days that Camp Newman

operated as a summer camp for Jewish youth. Before the camp was shut down in October

2017, the property had been in use in 2017 for a total of 182 days (beyond its seventy-six-day

use as a summer camp) for fifty-two different programs with over 3500 participants. In its

application for arbitration, URJ described the uses to which these outside organizations put

the property as follows:

Multiple organizations, from tech companies to secular schools to college

groups, have regularly used the Camp Newman Property for meetings and

extended community outreach activities. Individuals and groups also use the

facility for grief counseling meetings, family events, women’s studies, and

group meetings. . . . The data presented confirms that the Camp Newman

facility was being used for more than 50% of the time for eligible community

services at the time of the disaster.

Arbitration Application at 7. Based upon the license agreements and other materials that

URJ submitted to the Board, it appears that the activities of the guests of organizations

renting Camp Newman also included ziplining, hiking, kayaking, swimming, climbing and

ropes activities, other field activities, children’s art classes, yoga, dancing, and music

rehearsals and programs.

On October 8, 2017, a wildfire that came to be known as the “Tubbs Fire” started near

Tubbs Lane in Calistoga, California. Over the next several days, it and more than a dozen

other wildfires spread across Northern California, with the greatest scope of damage from

the Tubbs Fire occurring in Santa Rosa. The President issued a major disaster declaration,

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DR-4344, on October 10, 2017, covering the California wildfires, with a recognized incident

period of October 8 through 31, 2017.

The Tubbs Fire either totally destroyed or severely damaged most of Camp Newman’s

facilities. It severely damaged or destroyed foundations of buildings and both above-ground

and in-the-ground infrastructure.

On November 28, 2017, URJ submitted a request for public assistance to FEMA

through the California Governor’s Office of Emergency Services (Cal OES), seeking funds

to repair the Camp Newman property. URJ submitted a letter to FEMA on February 16,

2018, requesting approval of its application for PA grant funding as an eligible non-profit

organization providing eligible community center services.

On May 25, 2018, the California Office of Emergency Services (Cal OES) provided

URJ with a copy of FEMA’s Public Assistance Eligibility Determination, dated May 16,

2018, in which FEMA denied URJ’s request for PA funding for Camp Newman. In that

determination, FEMA did not challenge URJ’s description of Camp Newman as a community

center, but cited URJ’s failure “to satisfy the ‘primary use’ test” required of a mixed-use

private non-profit facility establish that over fifty percent of the physical space for each

facility on the Camp Newman property was dedicated to eligible services.

On July 23, 2018, URJ, in accordance with 44 CFR 206.206 (2017), timely submitted

a first appeal of FEMA’s denial to Cal OES, which, on September 21, 2018, Cal OES

transmitted to FEMA. On May 1, 2019, after more than seven months without decision by

FEMA on the first appeal, URJ submitted a request for arbitration to the Board pursuant to

section 423 of the Stafford Act, as amended by section 1219 of the Disaster Recovery

Reform Act of 2018 (DRRA), Pub. L. No. 115-254, 132 Stat. 3186. In its briefing to the

Board, FEMA now argues that the Camp Newman property is not eligible for PA funding

not only because Camp Newman does not satisfy the “primary use” test, but also because

Camp Newman is not, contrary to URJ’s description, the type of “community center” covered

by the Stafford Act.

Discussion

Section 423 of the Stafford Act, as amended by section 1219 of the DRRA, allows an

applicant for public assistance to submit a request for arbitration to the CBCA “to dispute the

eligibility for assistance . . . for a dispute of more than $500,000 for any disaster that

occurred after January 1, 2016.” 42 U.S.C.A. § 5189a(d)(1). Although an applicant can wait

to receive a determination on its first appeal before submitting an arbitration request to the

Board, it is entitled to submit an arbitration request beginning “180 days after the

CBCA 6457-FEMA

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Administrator’s receipt of the [first] appeal if the Administrator has not provided the

applicant with a final determination on the appeal” by that time. Id. § 5189a(d)(5)(B). URJ

seeks in excess of $500,000 in its request for assistance for damage that Camp Newman

sustained as a result of the Tubbs Fire in October 2017. When URJ submitted its arbitration

request to the Board, 222 days had passed since URJ had submitted its first appeal to FEMA,

without a response from FEMA. URJ’s submission is timely and is properly before us.

FEMA has raised two objections to eligibility here: it argues, first, that Camp

Newman does not qualify as a “community center” under FEMA’s regulations and

guidelines, meaning that it is not an “eligible facility” for PA funding purposes; and, second,

that URJ cannot show that more than fifty percent of Camp Newman’s physical space was

primarily dedicated to eligible services, meaning that it fails the “primary use” test that

FEMA uses in evaluating PA funding eligibility of mixed-use facilities like community

centers. Because, as discussed below, we agree with FEMA that Camp Newman is not a

“community center” eligible for PA funding, we need not address FEMA’s argument that

Camp Newman does not satisfy the “primary use” test.

Although URJ has presented uncontroverted evidence that it is a PNP, FEMA is

authorized to provide PA funding to a PNP applicant only if the applicant operates an eligible

PNP facility. 42 U.S.C. § 5172(a)(1)(B) (2012 & Supp. III 2016); 44 CFR 206.222(b).

Eligible facilities (or, as the term used in the Stafford Act and in FEMA’s regulations,

“private nonprofit facilities”) are classified as either critical or non-critical. Critical eligible

facilities are “private nonprofit educational (without regard to the religious character of the

facility), center-based childcare, utility, irrigation, emergency, medical, rehabilitational, [or]

temporary or permanent custodial care facilities (including those for the aged and disabled)

and facilities on Indian reservations, as defined by the President,” 42 U.S.C.A. § 5122(11)(A)

(West 2019); see 44 CFR 206.221(e)(1-6). Non-critical facilities, which are viewed as

“providing essential [social] services to the general public,” 44 CFR 206.221(e),1 are

identified as “museums, zoos, [performing arts facilities, community arts centers,]

1

FEMA’s regulations actually refer to the provision of “essential governmental type

services,” rather than “essential social services,” but section 20604 of the Bipartisan Budget

Act of 2018, Pub. L. No. 115-123, 132 Stat. 64, enacted on February 9, 2018, amended the

Stafford Act to require the reference to “social services.” 132 Stat. at 85 (amending

42 U.S.C.A. § 5122(11)(B) (West 2019)). The change is retroactively applicable to any

disaster or emergency declared on or after August 23, 2017. See 132 Stat. at 86. Because

the wildfires at issue here occurred in October 2017, the change is applicable to URJ’s

application, even though FEMA has not yet modified its regulations to comport with the

statutory change.

CBCA 6457-FEMA

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community centers, libraries, homeless shelters, senior citizen centers, rehabilitation

facilities, shelter workshops, [food banks, broadcasting facilities, houses of worship,] and

facilities which provide health and safety services of a governmental nature,” provided that

the facilities are “open to the general public.” Id. 206.221(e)(7) (bracketed language added

to comport with statutory amendments to the Stafford Act made through the Bipartisan

Budget Act of 2018, Pub. L. No. 115-123, 132 Stat. 64, 85).

Through its “Public Assistance Program and Policy Guide” (PAPPG), FP 104-009-2

(Apr. 2017), which is available on FEMA’s website, FEMA has provided further guidance

regarding which non-critical facilities are eligible for PA funding. 2017 PAPPG at 12; see

Dewees Island Property Owners Association, CBCA 6439-FEMA, 19-1 BCA ¶ 37,415, at

181,865 (discussing guidance regarding non-critical facilities). Because URJ contends that

Camp Newman is a “community center,” we focus upon that categorization here. Pursuant

to the 2017 PAPPG, community centers viewed as providing non-critical, but essential,

governmental or social services are those that have been “established and primarily used for

the purpose of offering” particular categories of services (or services similar to those

categories) “to the community at large.” 2017 PAPPG at 14. Although URJ has not

precisely specified which of the categories of services identified in the 2017 PAPPG upon

which it is relying in this arbitration, the seemingly most likely candidates are the following:

(1) “[e]ducational enrichment activities that are not vocational, academic, or professional

training”; (2) “[s]ervices and activities intended to serve a specific group of individuals (e.g.,

women, African-Americans, or teenagers) provided the facility is otherwise available to the

public on a non-discriminatory basis”; (3) “[s]ocial activities to pursue items of mutual

interest or concern, such as” community board meetings, neighborhood barbecues, various

social functions of community groups, and youth and senior citizen group meetings; and

(4) “[c]ommunity centers operated by a religious institution that provides secular activities,

such as fundraising, activities that help the community at large.” Id. The 2017 PAPPG

makes clear, though, that certain community services—specifically, conferences and

recreational activities—are ineligible for PA funding. Id. at 15.

The 2017 PAPPG also provides guidance as to the “open to the general public”

requirement of the “eligible facility” definition. Under that guidance, a facility generally

must meet “ALL of the following conditions” set forth below:

"

Facility use is not limited to any of the following:

#

A certain number of individuals;

#

A defined group of individuals who have a financial interest in

the facility, such as a condominium association;

#

Certain classes of individuals; or

CBCA 6457-FEMA

#

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An unreasonably restrictive geographical area, such as a

neighborhood within a community;

"

Facility access is not prohibited with gates or other security systems;

and

"

Any membership fees meet all of the following criteria:

#

Are nominal;

#

Are waived when an individual can show inability to pay the

fee;

#

Are not of such magnitude to preclude use by a significant

portion of the community; and

#

Do not exceed what is appropriate based on other facilities used

for similar services.

2017 PAPPG at 12. The policy guide adds an additional consideration specifically applicable

to facilities identified as community centers:

In cases where the facility provides multiple services, such as a community

center, FEMA reviews additional items to determine the primary service that

facility provides, such as:

!

!

!

U.S. Internal Revenue Service documentation

Pre-disaster charter, bylaws, and amendments

Evidence of longstanding, routine (day-to-day) use (e.g., a

calendar of activities)

Id. The PAPPG then reiterates that “[f]acilities established or primarily used for political,

athletic, religious, recreational, vocational, or academic training, conferences, or similar

activities are not eligible.” Id.2

2

The 2017 PAPPG does not reflect the recent retroactive amendments to the

Stafford Act made through the Bipartisan Budget Act of 2018, relating to religious facilities

or religious use of a facility. Because URJ has not characterized Camp Newman by reference

to religious uses, we need not consider the effect of the Stafford Act amendments upon

FEMA’s policy guidance here.

CBCA 6457-FEMA

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After reviewing all of the evidence submitted in this arbitration, we cannot find that

Camp Newman fits within the category of “community center” under FEMA’s guidelines,

for several reasons:

First, Camp Newman, with its emphasis on overnight accommodations and programs

most of which run for more than a single day, does not easily fit into what is typically thought

of as a “community center.” In a chart accompanying URJ’s initial submission to the Board,

URJ repeatedly referred to numerous buildings on the campus as having “[r]egular use by

rental groups for housing.” None of the “community center” examples to which URJ has

cited indicate that a facility providing overnight accommodations for rent to groups at a

market rate, or even a discounted rate, is a “community center” rather than a private rental

camp.

Second, although some of the various organizations renting Camp Newman have run

programs during their rental periods that appear to fit within the types of programs that a

community center might host, those programs are not the sole or necessarily the primary

emphasis of Camp Newman. Instead, Camp Newman is a rental property. URJ offers its

property to whatever groups will pay their rental fees, and many of those groups then focus

on recreational activities, business meetings, or conferences, activities that FEMA’s

regulations identify as ineligible for PA funding.

Third, although the rental fees that Camp Newman charges organizations that rent its

facilities may be a bargain compared to similar facilities or camps in the area, those fees are

certainly not “nominal,” as that term is used in FEMA’s policy guidance. The word

“nominal,” where price or fees are at issue, generally means “named as a mere matter of

form, being trifling in comparison with the actual value; minimal.” Random House

Webster’s Unabridged Dictionary 1305 (2d ed. 2001); see Black’s Law Dictionary 1210

(10th ed. 2014) (defining “nominal” as “trifling, esp. as compared to what would be expected

<the lamp sold for a nominal price of ten cents>”). The rental structure underlying Camp

Newman calls for an organization3 to rent the camp facilities, or a portion of them, and then

to bring a large group numbering anywhere from twenty-five to several hundred individuals

to the property for activities over the course of a day, an overnight, or several days. The

individual group members do not pay Camp Newman directly; it is the organization that must

3

We recognize that, on occasion, an individual will execute a Camp Newman

license agreement in his or her own name, rather than as a representative of an organization,

and will serve as a host for a group of individuals that he or she has invited to join him or her

at the camp. Our use of the word “organization” here encompasses that situation and does

not affect the result.

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pay for all of its guests, in a lump sum, in amounts totaling anywhere from $4000 to

$120,000. Although a “community center,” as FEMA defines the term, can charge nominal

fees to members of the public who want access to the center without losing its “community

center” status, we cannot find that the rental charges for Camp Newman are merely

“nominal.” Further, the fact that, on occasion, URJ donates Camp Newman for use by

certain organizations, which do not have to pay a rental fee for it, does not change the

essential nature of URJ’s regular fee structure or the non-nominal nature of those fees.

Fourth, here, the organization that rents the camp property controls who comes to the

camp and who does not, and only organizations that can afford to pay URJ’s rental fees will

be able to obtain that type of access and control. The record makes clear that URJ does not

itself actively manage, oversee, or promote community activities once it has a licensing

agreement in place, which FEMA policy guidance indicates is a factor in evaluating

eligibility. See FEMA Second Appeal Analysis, FEMA-4022-DR-VT, Neriga, Inc. (Dec. 19,

2013) (“While the Applicant allows other groups to use the camp facilities during the

offseason, simply making facility space available to community organizations does not make

a facility a community center,” and “Applicant has not provided any information to

demonstrate that the Applicant actively manages, oversees, or promotes community activities

outside of the purposes necessary for conducting the camps.”), available at

https://www.fema.gov/appeal/283592?appeal_page=analysis. In such circumstances, we

cannot find that Camp Newman is open to the general public for purposes considered

“eligible” for PA funding, as required by the Stafford Act and FEMA’s implementing

regulations.

URJ complains that FEMA, by alleging that Camp Newman is more akin to an

ineligible “conference center” than an eligible “community center,” is engaging in a game

of semantics to avoid PA funding. Yet, by trying to pigeonhole Camp Newman into a

“community center” category into which it does not easily fit, URJ is doing exactly the thing

about which it is complaining. In the historical literature that URJ submitted to the Board,

URJ has on several occasions in the past referred to Camp Newman as a conference center,

and FEMA’s regulations expressly preclude PA funding for such centers. See 58 Fed. Reg.

47992, 47993 (Sept. 14, 1993) (“Examples of ineligible services or facilities are . . .

conference facilities.”). We cannot ignore that, in the past, URJ has described Camp

Newman as a conference center or that URJ’s recharacterization of Camp Newman as a

community center came at a time when URJ needed to obtain PA funding.

URJ also suggests that the retroactive statutory amendments enacted through the

Bipartisan Budget Act of 2018, which changed language in the definition of “private

nonprofit facility” from requiring an eligible facility to provide “essential services of a

governmental nature” to requiring it to provide “essential social services,” render prior

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FEMA guidance obsolete and could make conferences and recreational activities eligible for

PA funding. We disagree. As part of the referenced statutory language change, Congress

also added to the Stafford Act a list of activities as examples of “essential social services”

that were not previously a part of the Act’s “private nonprofit facility” definition—namely,

performing arts facilities, community arts centers, food banks, broadcasting facilities, and

houses of worship. Congress did not add either conferences or recreational activities to the

list, and neither is similar to the activities currently listed in the statute. The amendment does

not assist URJ in obtaining PA funding here.

By denying URJ’s PA funding request, we are not discounting the valuable benefits

that Camp Newman has provided to those who have been able to rent or visit it. The record

here is filled with accolades from prior renters and guests of the property who extol its

benefits and value. Nevertheless, FEMA cannot fund restoration of every property damaged

during a disaster, and Congress, through the Stafford Act, has provided FEMA with the

roadmap for use in allocating scarce resources. The Act simply does not provide for PA

funding for every project or property that might be worthwhile, including the property here.

Decision

We find that Camp Newman is not eligible for PA funding and deny URJ’s

application.

Harold D. Lester, Jr.

HAROLD D. LESTER, JR.

Board Judge

Jerome M. Drummond

JEROME M. DRUMMOND

Board Judge

Beverly M. Russell

BEVERLY M. RUSSELL

Board Judge