§ 87-1 Permit required; exceptions.
§ 87-3 Application for permit.
§ 87-4 Newly surfaced streets.
§ 87-5 Tunneling and boring.
§ 87-6 Safety requirements; indemnification.
§ 87-7 Commencement of work and inspections.
§ 87-8 Restoration of street.
§ 87-9 Time limits; enforcement.
§ 87-10 Fees and bonding required.
§ 87-11 Violations and penalties.
§ 87-15 Assignment of street names.
§ 87-17 Address numbers on streets.
§ 87-18 Violations and penalties.
Unified development — See Ch. 96.
Editor's Note: This ordinance superseded former Ch. 87, Street Openings and Excavations, adopted 9-3-1965.
No person, firm or corporation shall disturb, dig into, excavate or make an opening of any kind in the surface, bed and right-of-way, road, avenue or other right-of-way dedicated to the public which has been accepted by or jurisdiction over which has been exercised in any manner by the Township of Elk, heretofore or hereafter, without first having obtained a permit therefor in compliance with the provisions of this article from the Township Clerk or other properly designated municipal official. The only person who can make such openings or excavations without obtaining a permit are employees of the Township or any of its utilities in the performance of their Township duties and work under the supervision of Township officers. The permit for street openings and excavations shall be valid, as prescribed herein, for the time frame specified by the applicant at the time of application. Permits must be obtained at a minimum of 72 hours prior to the time when the street opening is to occur. Work shall start on the date specified in the permit. Prior to the commencement of work, twenty-four-hour notice to the Township Clerk and Public Works Superintendent is required, except in the event of emergencies.
The only time an opening or an excavation may be made in, upon or under the surface of any street without first having obtained a permit is in the event of any sudden and emergent break of any water, sewer, gas, oil or other underground lines which endangers the life, health and safety of the public or people of the Township of Elk or their property. The making of any such opening or excavation shall be reported immediately within 24 hours to the Police Department and the Township Clerk, and a permit therefor shall be obtained within 48 hours.
Each application for permit to open or excavate in or under the surface of any street shall be in writing, numbered consecutively by calendar year, and be kept on file in the office of the Township Clerk.
In each application shall be set forth the name and address of the applicant and any subcontractor who may perform any work described in the application; the name and address of the property owner or other person for whose benefit the opening or excavation is being made; the street and exact location of the opening or excavation; the size, length, breadth and depth of the opening or excavation and its purpose; the type of street surface; the time and date when it is to be made; the date that the opening or excavation and street surface will be restored; and such other details as may be necessary. In addition, the applicant and all subcontractors shall provide their contractor’s registration and/or license number. Each application shall be in triplicate, and a copy of the permit, if granted, shall be attached thereto. The application shall also contain space and provision to note thereon that there has been a completion and inspection of the restoration of the opening or excavation and of the street surface, which shall be in a satisfactory manner, and the date of the same and signature of the Township Engineer making the inspection.
Each applicant and/or subcontractor performing work under a permit shall provide to the Township Clerk a copy of a valid certificate or policy of commercial liability insurance, blank broad form, containing minimum general aggregate limits in the sum of $2,000,000. The Township of Elk must be named as an additional insured on the applicant's and/or subcontractor's certificate of insurance. The contractor and/or subcontractor shall not commence work until copies of all insurance certificates and performance bonds have been submitted to the Township Clerk.
An emergency situation such as set forth in § 87-2 above exists.
The necessity and purpose for opening the surface of the street could not have been and was not discovered by the applicant for the permit prior to the time the hard surface was installed, and the applicant is bound by the actions of any predecessor in title to his lands in this respect.
The best interests of the Township require that the permit be granted.
A permit as set forth above in this article shall be required for any tunneling or mechanical boring under the surface of any street for any purpose whatsoever. Any such tunneling or boring shall be done only after the Township Engineer has recommended that it be permitted and shall be done under the supervision of said Engineer, whose services shall be paid for by the applicant.
All pavements, sidewalks, curbs, gutter, pipes, manholes, drains, conduits or other installations and private property of adjoining owners shall be properly protected by the person or firm obtaining the permit for the street opening. Any damage thereto shall be the responsibility of and paid for by the person or firm to whom the permit is issued. A surety bond may be required for this purpose by the Township Committee.
All openings shall be protected at all times to prevent injury to persons and property. The holder of the permit may be ordered to furnish additional protection for this purpose at any time by an official or proper supervisory employee of the Township.
Unless written permission is obtained from the Township Committee, no permit holder shall be allowed permission to cut, break into, excavate or open a street for a greater distance than 300 feet at one time or keep the same open for a longer period than one week. Where the excavation will extend across the full width of a street, 1/2 of the same shall be made at one time and shall be properly backfilled before the other half is excavated so as not to interfere with traffic. No portion of trench is to be left open overnight, on weekends or holidays. In no event shall a permit be valid for a period of time in excess of 120 days after its issuance without the written approval of the Township Committee.
All permit holders shall keep the area of their work clear of dirt and debris at all times and shall carry away and dispose of excess dirt, debris and other material resulting from their work.
Sufficient advance warning signs, lights, cones, barricades and other approved safety devices are to be provided in accordance with the Manual on Uniform Traffic Control Devices. Uniformed, trained traffic directors are to be provided, as required or requested by the Township Engineer.
All excavations to a depth of six feet or over, and such other excavations as may be required by the Township Engineer, shall be shored and braced to support the wall of the trench for the protection of workers and to prevent the unintentional widening of the trench.
The permittee and its subcontractors shall defend, indemnify, protect and save harmless the Township of Elk and its agents, servants and employees from damages of whatever kind or nature arising out of, or claimed to arise out of, any negligent act, error or omission of the permittee, its agents, servants and employees in the performance of the work covered by the permit.
All permanent paving markings (crosswalks, traffic center lines, etc.) that are damaged during construction shall be repainted by or under the direction of the Township Engineer at the expense of the permittee.
Upon completion of the excavation and all work, the project area shall be restored (including all grassed areas, gutter areas, road shoulders, sidewalks, pavements, pipes, drains and private property of adjoining owners) to a condition that meets or exceeds the condition prior to the commencement of the excavation, under the direction of the Township Engineer, and at the expense of the permittee.
Permits must be kept at the job site during the work and must be shown, upon request, to any authorized Township personnel. Work shall commence within 24 hours of the date the permit is issued. All trenches, excavations and utility installations for which a street opening permit is required, must be inspected by the Township Engineer or his designee before any portion of the work is backfilled. It is the responsibility of the applicant to properly notify the Township Clerk and the Township Engineer to request the inspection. If the opening is not properly inspected, the Township Engineer reserves the right to require the applicant to re-excavate all or a portion of the work.
The permittee shall take appropriate measures to insure that during the performance of the excavation, normal and safe traffic conditions shall be maintained at all times, causing as little inconvenience as possible to the occupants of the adjoining property, and to general vehicular traffic. If it is necessary to close a Township street, it is the applicant’s responsibility to notify the Township's Police, Fire and School Departments. The Township Engineer and/or the Chief of Police may require the presence of a police officer or traffic/road flagger to be present during construction. All costs incurred relating to the police officer or traffic/road flagger shall be borne by the permittee.
Editor's Note: This ordinance also redesignated former §§ 87-7 through 87-10 as §§ 87-8 through 87-11, respectively.
The cost of restoration of streets shall be borne by the person or firm obtaining the permit. All cuts, breaks, excavations or openings shall conform in size to the applications on which the permit is based and shall be performed in neat, even and rectangular sections. The permittee will properly restore to the satisfaction of the Township Engineer any portion of said roadway which it may have disturbed and will maintain it to the satisfaction of the Township Engineer from any settlement or depression resulting from this work for a period of two years after approval of such restoration by the Township Engineer.
Backfilling and temporary paving. All excavations shall be completely backfilled, and as great a portion as possible of the excavated material shall be replaced. Compaction shall be accomplished by mechanical tamping or as otherwise directed. Additional material shall be supplied when a deficiency occurs. If the Township Engineer considers the excavated material unsatisfactory for backfill, approved material shall be supplied and the excess unapproved material removed. If tamping alone is employed, the material shall be placed in steps not exceeding 12 inches in depth, moistened if directed, and each step shall be properly tamped until thoroughly compacted. If immediate replacement of permanent pavement is not feasible, the temporary restoration shall consist of not less than two inches of cold patch material consolidated to highway grade. The permittee shall maintain the temporary pavement in a satisfactory condition until permanent repairs are made. Temporary restoration can remain for only a maximum of six months.
Permanent pavement restorations. If a permanent repair is not feasible at the time the opening is closed, it shall be made as soon as conditions allow. The existing paving shall be restored to its original full depth with a minimum of six-inch crushed concrete/DGA below two-inch bituminous top course for final restoration. All joints and seams shall be sealed with a liquid tar-base joint sealer. The permittee is to notify the Township Engineer 72 hours prior to permanent repair.
All street openings shall be opened, closed and replaced as expeditiously as possible under the circumstances and purpose of the opening; however, closure of the excavation shall occur no later than the date specified in the permit application. If the same are not replaced expeditiously as aforesaid and good cause for the delay is not shown, the Township may, after notice and hearing thereon, proceed to close and replace the street opening and charge the cost thereof to the holder of the permit.
Single street opening involving only one (1) lot frontage.
Township Engineer review fee (nonrefundable): $300.
Township Engineer inspection fee (nonrefundable): $500.
Cash security performance deposit: $750.
Note: Township Engineer shall make recommendation of additional escrow funds should the project repair costs exceed the initial escrow deposit.
Multiple openings per street or multiple lot frontages per application.
Township Engineer review fee (nonrefundable): $400.
Township Engineer inspection fee (nonrefundable): $750.
Cash security performance deposit: The greater sum of $750 or such sum that may be established by the Township Engineer to assure compliance with terms of this article in an amount not to exceed 120% of the cost of repair, rehabilitation or installation of improvements towards restoration of the roadway.
For utility companies and/or contractors anticipating numerous multiple road opening permits per calendar year, the applicant may post a one-time cash security performance deposit of $10,000 for a one-year period beginning January 1st and ending December 31. However, the applicant must submit the appropriate filing, review and inspection fees on a per-application basis.
"Performance security," for the purposes of this subsection, shall mean and include cash deposits or performance bonds or irrevocable letters of credit in a form approved by the Municipal Attorney. Performance security shall guarantee the faithful and satisfactory performance of the work in all respects, and shall replace or restore that portion of any street, highway or road in which the applicant, applicant’s agents and/or subcontractors shall make any excavation. In the event that the estimated costs of repair, rehabilitation or installation of roadway improvements shall, at any time, exceed the initial estimate or sums of performance security specified in Subsection A or B hereof, the permit holder, on written notice, shall provide such additional performance security equal to such additional costs within 10 days of such notice. All performance security shall remain in full force for a period of one year after the date that the excavation work is completed. A separate maintenance guarantee shall be required in the event that the performance security does not cover the excavation work for a period of one year from the date that the excavation work is completed.
Any person or persons violating any of the provisions of this article shall, upon conviction thereof, be punished by a fine not exceeding $2,000 and/or by imprisonment not exceeding 90 days, or both.
This article shall be known as the "9-1-1 Emergency Response and GPS Public and Private Street Naming and Numbering Ordinance." The purpose is to name public and private streets and to denote a system of street numbering in order to enhance public safety and provide 9-1-1 emergency response and GPS capabilities for the residents of the Township of Elk.
This article applies to any highway, road, right-of-way, avenue, lane, private way, or paved/gravel/dirt thoroughfare located on public and private property.
This article shall be administered by the Committee of the Township of Elk or its designee. The Committee is authorized to and shall assign street names and numbers to all properties, both on existing public and private streets and proposed streets, in accordance with the criteria herein.
Whenever a name is assigned to any new street, or a change is made in the name of any street, the Committee shall notify the County of Gloucester through the office of the Gloucester County Department of Emergency Response, Office of 9-1-1; New Jersey Department of Motor Vehicles; Monroeville and Glassboro Post Offices; Gloucester County Board of Elections; Gloucester County Surrogate; Elk Township Board of Education; Delsea Regional Board of Education; Elk Township Planning Board; and all utility companies providing utility services to the affected properties located within the Township of Elk.
The Township of Elk shall be responsible for signage for all public streets. The real property owner shall be responsible for the signage at the entrance to any private street if the Township Committee authorizes a name change on private property. If that signage is damaged or destroyed, the residents of the private street shall be responsible for its repair or replacement.
The Township Committee shall have the authority to assign numbers to all existing residential and/or other structures and/or vacant lots along any public or private streets.
Any person who violates any provision of this article shall, upon conviction in the Municipal Court of the Township of Elk or such other court having jurisdiction, be liable to a fine not exceeding $1,000. Each day that a violation occurs shall be deemed a separate and distinct violation subject to the penalty provisions of this article.


United States, Letter from the Department of the Army to the legal adviser of the US armed forces deployed in the Gulf region, 11 January 1991, § 8(E), Report on US Practice, 1997, Chapter 1.4.
United States, “The Obama Administration and International Law”, speech by the Legal Adviser, US Department of State at the Annual Meeting of the American Society of International Law, Washington DC, 25 March 2010.
The requirement that attacks be limited to military objectives results from several requirements of international law. The mass annihilation of enemy people is neither humane, permissible, nor militarily necessary. The Hague Regulations prohibit destruction or seizure of enemy property “unless such destruction or seizure be imperatively demanded by the necessities of war.” Destruction as an end in itself is a violation of international law, and there must be some reasonable connection between the destruction of property and the overcoming of enemy military forces. Various other prohibitions and the Hague Regulations and Hague Convention IX further support the requirement that attacks be directed only at military objectives.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5–3(b)(2); see also Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 56.
United States, Desert Storm – Rules of Engagement, Pocket Card, US Central Command, January 1991, reprinted in Operational Law Handbook, International and Operational Law Department, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia, 1995, pp. 8-7 and 8-8, § 2.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 8.1.1.
An object that meets the definition of a military objective may be attacked even if the object, such as an electric power plant, also serves civilian functions, subject to the requirement to avoid excessive incidental injury and collateral damage.
United States, Statement by the Secretary of State, Dean Acheson, 6 September 1950, reprinted in Marjorie Whiteman, Digest of International Law, Vol. 10, Department of State Publication 8367, Washington, D.C., 1968, p. 140.
United States, News briefing by Deputy Assistant Secretary of State for Public Affairs, Robert McCloskey, 22 December 1966, reprinted in Marjorie Whiteman, Digest of International Law, Vol. 10, Department of State Publication 8367, Washington, D.C., 1968, p. 426.
United States, Letter dated 17 January 1991 to the President of the UN Security Council, UN Doc. S/22090, 17 January 1991, p. 2.
United States, Department of State, Diplomatic Note to Iraq, Washington, 21 January 1991, annexed to Letter dated 22 January 1991 to the President of the UN Security Council, UN Doc. S/22130, 22 January 1991.
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 644.
In addition to the grave breaches of the Geneva Conventions of 1949, the following acts are representative of situations involving individual criminal responsibility: … (4) aerial bombardment for the deliberate purpose of … destroying protected areas, buildings or objects.
Avoid harming civilian property unless necessary to save US lives. Do not attack traditional civilian objects, such as houses, unless they are being used by the enemy for military purposes and neutralization assists in mission accomplishment.
United States, Desert Storm – Rules of Engagement, Pocket Card, US Central Command, January 1991, reprinted in Operational Law Handbook, International and Operational Law Department, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia, 1995, pp. 8-7 and 8-8, § G.
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(3), p. IV-4.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(3), p. IV-4.
(3) ATTACKING CIVILIAN OBJECTS. – Any person subject to this chapter who intentionally engages in an attack upon a civilian object that is not a military objective shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2626, § 950v(b)(3).
“(3) ATTACKING CIVILIAN OBJECTS.—Any person subject to this chapter who intentionally engages in an attack upon a civilian object that is not a military objective shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2009, § 950t(3).
In 1974, at the Lucerne Conference of Government Experts on Weapons which may Cause Unnecessary Suffering or have Indiscriminate Effects, the head of the US delegation stated that “the law of war also prohibits attacks on civilians and civilian objects as such”.
In a declaration on Yugoslavia adopted in 1991, the European Community and its member States, the Union of Soviet Socialist Republics and the United States stated that they were “particularly disturbed by reports of continued attacks on civilian targets by elements of the federal armed forces and by both Serbian and Croat irregular forces”.
European Community, Union of Soviet Socialist Republics and United States of America, Declaration on Yugoslavia, The Hague, 18 October 1991, annexed to Letter dated 21 October 1991 from the Netherlands, the Union of Soviet Socialist Republics and the United States to the UN Secretary-General, UN Doc. A/C.1/46/11, 24 October 1991.
The United States considers the obligations to protect natural, civilian, and cultural property to be customary international law … Cultural property, civilian objects, and natural resources are protected from intentional attack so long as they are not utilized for military purposes.
United States, Department of Defense, Report to Congress on International Policies and Procedures Regarding the Protection of Natural and Cultural Resources During Times of War, 19 January 1993, p. 202.
Do not fire into civilian populated areas or buildings which are not defended or being used for military purposes. [S]chools … will not be engaged except in self-defense. Do not attack traditional civilian objects, such as houses, unless they are being used by the enemy for military purposes and neutralization assists in mission accomplishment.
United States, Desert Storm – Rules of Engagement, Pocket Card, US Central Command, January 1991, reprinted in Operational Law Handbook, International and Operational Law Department, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia, 1995, pp. 8-7 and 8-8, §§ B, C and G.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 8.5.1.1.
United States, Letter dated 30 January 1991 to the President of the UN Security Council, UN Doc. S/22173, 30 January 1991, p. 2; see also Letter dated 22 January 1991 to the President of the UN Security Council, UN Doc. S/22130, 22 January 1991, pp. 1–2; and Letter dated 8 February 1991 to the President of the UN Security Council, UN Doc. S/22216, 13 February 1991, p. 2.
If identified as a civil aircraft, air transport in flight should not be the object of attack, unless at the time it represents a valid military objective such as when there is an immediate military threat or use. An unauthorized entry into a flight restriction zone might in some conflicts be deemed an immediate military threat. Wherever encountered, enemy civil aircraft are subject to instruction in order to verify status and preclude their involvement … Civil aircraft on the ground, as objects of attack, are governed by the rules of what constitutes a legitimate military objective as well as the rules and principles relative to aerial bombardment. As sources of airlift they may, under the circumstances ruling at the time, qualify as important military objectives. Civil aircraft entitled to protection include nonmilitary state aircraft and a state owned airline. The principle of law and humanity protecting civilians and civilian objects from being objects of attack as such, protects civil aircraft in flight, because civil aircraft are presumed to transport civilians. Such an aircraft is not subject to attack in the absence of a determination that it constitutes a valid military objective.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 4-3.
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 2-2.
Civil passenger vessels at sea and civil airliners in flight are subject to capture but are exempt from destruction. Although enemy lines of communication are generally legitimate military targets in modern warfare, civilian passenger vessels at sea, and civil airliners in flight, are exempt from destruction, unless at the time of the encounter they are being utilized by the enemy for a military purpose (e.g., transporting troops or military cargo) or refuse to respond to the directions of the intercepting warship or military aircraft. Such passenger vessels in port and airliners on the ground are not protected from destruction.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 8.2.3(6).
Civilian passenger vessels at sea and civil airliners in flight are subject to capture but are exempt from destruction. Although enemy lines of communication are generally legitimate military targets in modern warfare, civilian passenger vessels at sea, and civil airliners in flight, are exempt from destruction, unless at the time of the encounter they are being utilized by the enemy for a military purpose (e.g., transporting troops or military cargo) or refuse to respond to the directions of the intercepting warship or military aircraft. Such passenger vessels in port and airliners on the ground are not protected from destruction.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.6.3.
Following investigations by the Secretary-General of the International Civil Aviation Organization (ICAO) into the shooting down of two civil aircraft by the Cuban air force on 24 February 1996, a debate took place on 26 July 1996 in the UN Security Council, during which the United States stated: “Cuba violated the principle of customary law that States must refrain from resorting to the use of weapons against civil aircraft in flight – a principle that applies whether the aircraft are in national or international airspace”. According to the United States, an attack against a civilian aircraft in flight violates elementary considerations of humanity.
United States, Statement before the UN Security Council, UN Doc. S/PV.3683, 26 July 1996, p. 3.


text:
PARTIES: COUNSEL. In the matter of Defendant-Appellant 1. Dörken-Gutta Pol. SP.Z.O.O., ul. Szeligowska 42, 01-320 Warsaw, Poland, [buyer]; and Defendant-Appellant 2. Ewald Dörken AG, Wetterstrasse 58, 58313 Herdecke, Germany, both represented by attorney Alfred Gilgen, Kreuzstrasse 54, 8032 Zürich, Switzerland, versus Plaintiff-Respondent Gutta-Werke AG (joint-stock corporation), Tobel, 8345 Adetswil, Switzerland, [seller], represented by attorney Dr. Martin Burkhardt, Bleicherweg 58, 8027 Zürich, Switzerland, regarding local and international jurisdiction.
A. On 31 August 1999, the [seller], which has its place of business in Bäretswil, [Switzerland], filed an action against [buyer], a Polish company with seat in Warsaw, and [buyer's parent company], which is seated in Herdecke [Germany]. The [seller] requests that the defendants be ordered to pay Sf [Swiss francs] 641,026.54 with 5% interest from 14 July 1999. [Seller] submits that it repeatedly delivered building materials to the [buyer] in the second half of the year 1998 and in the beginning of 1999. Despite payment reminders, the respective invoices were not paid. [Seller] claims that the [buyer's parent company] is liable for culpa in contrahendo [*], i.e., for "raising trust regarding the group conduct of the parent company." [Seller] brings forward an agreement dated 14/20 December 1994 between the Dutch Elda Holding B.V. - a business syndicate to which the [seller] belongs - and the [buyer's parent company]. According to that agreement, the [buyer's parent company] was under a duty to re-finance the [buyer]. This obligation was similar to a guarantee and was not honored by the [buyer's parent company].
With submissions brief of 10 January 2000, the [buyer] and [buyer's parent company] raised the objection of lack of local jurisdiction; they submit that - contrary to the [seller]'s assertion - the [seller] and the [buyer] had not formed a valid forum selection clause. [Buyer] and [buyer's parent company] plead that it is also not true that the courts of the Canton of Zürich possess jurisdiction as the courts for the place of performance of the obligation in question. [Buyer] and [buyer's parent company] submit that the [seller]'s syndicate and the [buyer's parent company] orally formed a principle agreement on 4 March 1999 in Zürich. Following that agreement, the parties' co-operation in Poland would end and the [buyer's parent company] would take over 100% ownership of the [buyer]. [Translator's note: As is revealed by [buyer]'s name, the [seller]'s syndicate previously held a share in the [buyer] ].
Additionally, the parties agreed that all pending claims between the various companies of the two groups, on the one hand, and the [buyer], on the other hand, would be compared as of the date of 30 June 1999. The claims were to be settled either by set-off or by reciprocal payment. The [buyer] and [buyer's parent company] submit that this agreement supersedes the different places of performance resulting from the various contracts and leads to only two places of performance: Amsterdam, for accounts receivable by the [seller]'s syndicate, and Herdecke, for debts payable to the [buyer]'s company group. Finally, the [buyer] and [buyer's parent company] argue that the courts of the Canton of Zürich are not the competent forum, either as courts of the place of performance of the obligation in question, or as courts of the place where the breach occurred, even if one followed the [seller]'s assertion that the joint-venture contract of 14/20 December 1994 was decisive on this matter.
B. On order of 22 February 2000 the Commercial Court of Zürich [Court of First Instance] dismissed the objection of lack of jurisdiction raised by the [buyer] and [buyer's parent company]. The [Court of First Instance] denied that a forum selection clause in the meaning of Art. 17(1)(c) of the Lugano Convention [*] had been formed between the [seller] and the [buyer]. Nonetheless, the [Court of First Instance] held that it possessed local and international jurisdiction regarding both the [buyer] and the [buyer's parent company] as the court of the place of performance of an obligation under a contract.
The [buyer] and [buyer's parent company] appeal to the Supreme Court against this order of the [Court of First Instance].
Regarding the order that they reimburse the [seller] for the cost of the proceeding in the first instance, [buyer] and [buyer's parent company] raised an appeal at the Zürich Court of Cassation. That appeal is still pending.
Order the Court of First Instance to dismiss the [seller]'s claim.
In the alternative, the [buyer] and [buyer's parent company] request the Supreme Court to refer the matter back to the Court of First Instance to make further factual findings following the Supreme Court's considerations.
The [seller] requests that the appeal be dismissed.
1. The order of the Zürich Court of First Instance is an independent decision of the High Court of a Canton regarding its own jurisdiction. Following Art. 49(1) OG [*], an appeal against such a decision is possible if the appellant argues that federal law concerning the local or international jurisdiction has been violated. With their appeal, the [buyer] and [buyer's parent company] maintain their objection to the local and international jurisdiction of the Court of First Instance and claim that Court violated federal competence rules (Art. 113 IPRG [*], Art. 5 no. 1 and 3 and Art. 17 of the Lugano Convention [*]). As the sum in dispute exceeds the Sf 8,000.00 required by Art. 46 OG, the appeal is admissible.
3. In contrast to Germany and Switzerland, Poland - where the [seller] has its place of business - is not a party to the Lugano Convention (The Lugano Convention entered into force in Switzerland on 1 January 1992 and in Germany on 1 March 1995). However, both Poland and Switzerland are Contracting States to the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG). The Convention entered into force in Switzerland on 1 March 1991 and in Poland on 1 June 1996.
According to CISG Art. 1(1), the Convention applies to contracts of sale of goods between parties whose places of business are in different States: (a) when the States are Contracting States; or (b) when the rules of private international law lead to the application of the law of a Contracting State. It is not in dispute that the cause for the deliveries of building material in the years 1998 and 1999 were sales contracts between the [seller], with place of business in Switzerland, and the [buyer], whose seat is in Poland. Since the requirements of CISG Art. 1(1)(a) are met, the Convention finds direct application, without recourse to the Swiss rules of private international law (cf. Ferrari in Schlechtriem (ed.), Kommentar zum Einheitlichen UN-Kaufrecht, 3d ed., Art. 1 n. 63; Siehr in Honsell (ed.), Kommentar zum UN-Kaufrecht, preamble n. 4 and Art. 1 n. 2; Staudinger/Magnus, Kommentar zum Bürgerlichen Gesetzbuch, Wiener UN-Kaufrecht, Art. 1 n. 85; Neumayer/Ming, Convention de Vienne sur les contrars de vente internationale de marchandises, Commentaire, p. 42, Art. 1 n. 6; Witz/Salger/Lorenz, Internationales Einheitliches Kaufrecht, Art. 1 n. 11; Jean-Paul Vulliéty, Le transfert des risques dans la vente internationale, doctoral thesis, Geneva 1998, p. 47).
The CISG provides the substantive sales law for contracts for the international sale of goods, insofar as it contains provisions settling such matters (CISG Art. 7(2)). The rules of the Convention supersede the national law (cf. Siehr, op. cit., Art. 1 n. 1; Keller/Siehr, Kaufrecht, 3d ed., p. 156 and p. 178; Ferrari, op. cit., before Arts. 1 - 6 n. 24; Witz/Salger/Lorenz, op. cit., Art. 1 n. 12). However, the Convention itself does not regulate procedural matters and, consequently, the CISG does not provide for jurisdiction (Karollus in Honsell (ed.), Kommentar zum UN-Kaufrecht, Art. 31 n. 49 and Schnyder/Straub, ibid, Art. 57 n. 26). The jurisdiction of the competent court is to be determined according to the rules of private international law of the forum State (Neumayer/Ming, op. cit., p. 250, Art. 31 n. 14).
Following Art. 4(1) of the Lugano Convention, the Swiss IPRG [*] applies in this case. According to IPRG Art. 113, a claim may be filed with the Swiss court of the place of performance of the obligation in question if the obligation is to be performed in Switzerland, even though the defendant has neither a place of residence, nor a place of business in Switzerland. Under CISG Art. 57(1)(a), if the buyer is not bound to pay the price at any other particular place, it must pay it to the seller at the seller's place of business. In the present case, payment was not to be made against the handing over of the goods or of documents (CISG Art. 57(1)(b), regarding this provision cf. BGE [*] 122 III 43 E. 3c, p. 46). The Court of First Instance, therefore, correctly held that [seller] was entitled to sue at the court of the [seller]'s place of business. Consequently, the Supreme Court does not need to ascertain whether the Court of First Instance would also be the competent court following a forum selection clause under Art. 17(1)(c) of the Lugano Convention, an argument that is still maintained by the [seller].
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Defendant-Appellant 1. of Austria is referred to as [buyer] and Defendant-Appellant 2. of Germany is referred to as [buyer's parent company]; the Plaintiff-Respondent of Switzerland is referred to as [seller]. Also, monetary amounts in Swiss francs are indicated by [Sf].
Translator's note on other abbreviations: culpa in contrahendo = liability for negligence in the course of contracting (pre-contractual liability); BGE = Entscheidungen des Bundesgerichts [Official Reporter of Cases of the Swiss Supreme Court]; IPRG = Bundesgesetz über das Internationale Privatrecht [Swiss Code on the Conflict of Laws]; Lugano Convention = EC EFTA Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters - Lugano, 16 September 1988; OG = Bundesgesetz über die Organisation der Bundesrechtspflege [Swiss Federal Code on Court Organization].

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Art. 5
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Art. 46
Art. 1
Art. 1
Art. 1
Art. 1
Art. 1
Art. 1
Art. 1
Art. 7
Art. 1
Art. 1
Art. 31
Art. 57
Art. 31
Art. 4
Art. 113
Art. 57
Art. 57
Art. 17


text:
23.719.050 Use and general requirements for parking lots.
23.719.060 Requirements for off-street parking spaces.
23.719.080 Reductions and exceptions to minimum parking requirements.
23.719.090 Design standards for surface parking lots.
23.719.100 Design standards for parking structures.
23.719.120 Design standards for bicycle parking facilities.
23.719.130 Standards for off-street parking for private residences.
This chapter establishes standards for the amount, location, and development of motor vehicle parking, bicycle parking, and on-site loading areas. The purpose of the standards is to provide for safe vehicular parking, circulation, and loading requirements supportive of a variety of uses in an increasingly pedestrian, bicycle-friendly, and transit-oriented community. [Ord. 4-2017 § 3 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.010)].
A. New Development. For all buildings or structures erected and all uses of land established after the effective date of the ordinance codified in this title, parking for vehicles and bicycles and loading facilities shall be provided as required by this chapter.
B. Change in Use. When the use of any building, structure, or premises is changed, resulting in an increase of more than 10 percent in the required number of off-street parking spaces, additional off-street parking shall be provided consistent with Table 23.719-1 (Required Minimum Vehicle Ratios) and required bicycle parking, and the parking lot design shall comply with the requirements of this code.
C. Change of Occupancy. Where a new business license is required, additional parking spaces shall be provided if the new occupancy would result in an increase of more than 10 percent in the required number of off-street parking spaces. The director or his/her designee shall review the parking requirements of the proposed use and must approve the parking plan before a new business license is issued.
D. Modification to Existing Structures. Whenever an existing building or structure is modified such that it creates an increase of more than 10 percent in the number of off-street parking spaces required, additional off-street parking spaces shall be provided in accordance with the requirements of this chapter. [Ord. 4-2017 § 3 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.020)].
A. Building Permit. New parking lot design and modifications to existing parking lots in conjunction with a substantial change in use to an existing structure shall be reviewed in conjunction with the building permit and any other land use or development permit required for the project.
B. Zoning Certification. Modification or improvement to an existing parking lot that impacts the parking space layout, configuration, number of stalls, landscape planters, etc., shall require zoning certification as provided in Chapter 23.113 RCMC (Zoning Certification) to authorize the change as consistent with the zoning code.
C. Exempt Activities. Parking lot improvements listed below shall be considered minor in nature in that they do not alter the number or configuration of parking stalls. Such improvements shall be exempt from permit requirements.
1. Repairing any defects in the surface of the parking area, including holes and cracks.
2. Resurfacing, slurry coating, and restriping of a parking area with identical delineation of parking spaces.
3. Repairing or replacing in the same location damaged planters and curbs.
4. Working in landscape areas, including sprinkler line repair, replacement of landscape materials, or refurbishment. [Ord. 4-2017 § 3 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.030)].
A. If the calculation for parking needs results in the requirement for a fraction of a parking space, the value shall be rounded to the nearest whole number as provided in RCMC 23.107.020 (Rules of interpretation).
B. Seating capacity shall be based upon the actual number of seats or one seat per 18 inches of bench or pew length and one seat per 24 inches of booth length for dining. For other areas where seating is not fixed, the seating capacity shall be determined as indicated by the Uniform Building Code. [Ord. 4-2017 § 3 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.040)].
A. All vehicular parking areas shall be maintained by the owner of the property, such as being kept free of garbage and debris, and free of damage to asphalt, concrete surface, landscape areas, or curbing.
B. Required off-street parking spaces and parking areas shall be used only for parking operable vehicles of residents, employers, employees, customers, and visitors as appropriate to the allowed uses of the applicable zone.
C. Required off-street parking spaces shall not be used for the storage of vehicles or materials, or for the parking of trucks used in conducting business. Parking spaces not needed to meet minimum requirements may be used for alternative uses subject to the provisions of this title (e.g., temporary use permit, permanent or semi-permanent display of merchandise).
D. No sales, storage, repair work, dismantling, or servicing of any kind shall be permitted in parking spaces without necessary permits for such use.
E. All required off-street parking shall be kept clear of temporary or permanent obstructions.
F. Existing parking shall not be reduced below the requirements of this section.
G. Living, sleeping, or housekeeping in any vehicle, trailer, or vessel is prohibited.
H. For residential tenant and guest parking, the spaces must be marked per the required minimum standards for tenant and guest parking. [Ord. 4-2017 § 3 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.060). Formerly 23.719.060].
A. Required off-street parking spaces shall not be located within any required front yard or required street side yard setback of any parcel (see RCMC 23.719.130 (Standards for off-street parking for private residences) for additional allowances and requirements).
B. Parking may not occur within any required clear vision triangle area on a corner lot.
C. Parking spaces shall not preclude direct and free access to stairways, walkways, elevators, any pedestrian accessway, or fire safety equipment. Such access shall be a clear minimum width of 44 inches, no part of which shall be within a parking space. [Ord. 4-2017 § 3 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.070). Formerly 23.719.070].
A. Minimum Requirements. Minimum vehicle and parking space requirements are listed in Table 23.719-1 (Required Minimum Vehicle Ratios). Where there is more than one parking ratio listed in the table, the greater of the two applies.
2. Parking for vehicles that are for sale, lease, or rent.
1. All projects that exceed the minimum parking requirement by more than 125 percent shall demonstrate how the property can be developed in the future to utilize the additional parking areas for structures, landscaping, plazas, or other active use.
2. In the downtown district, the number of vehicle parking spaces provided shall not exceed 150 percent of the minimum parking ratio. Where no parking is required, the maximum parking allowance is two spaces.
D. Similar Use. For a use not listed in Table 23.719-1 (Required Minimum Vehicle Ratios), the required vehicle shall be the same as for the most similar use listed, as determined by the director.
1. Up to 25 percent of the required number of parking spaces may be sized for compact cars.
3. Compact car spaces shall be distributed throughout the parking lot.
4. Where an entire section of the parking lot is restricted to compact parking with an angle of 90 degrees, the aisle width may be reduced from the standard 25 feet to 21 feet. Such compact sections should be located so as to minimize the distance from the parking lot section to the appropriate building or activity.
F. Disabled Parking. All off-street parking areas of multifamily, mixed use, and nonresidential properties must comply with the requirements of the Disabled Access Regulations, California Building Code, Title 24.
G. Exceptions. Exceptions to minimum parking space standards shall be permitted in accordance with RCMC 23.719.080 (Reductions and exceptions to minimum parking requirements).
2. Parking may be reduced to one space per unit for residential units for low or moderate income subsidized homeownership units.
3. Additional parking for home occupations is not required to be covered or enclosed and may occur within the front or street-side yard setback on a driveway or other paved surface.
4. On-street parking space adjacent to park property may be credited toward parking requirement.
5. Applies to seating in main or largest assembly area only.
6. Clubhouse calculated as retail and provided in addition to required spaces for golf courses. Additional parking not required for accessory uses (e.g., driving ranges, putting greens, maintenance shops, equipment storage).
7. Parking based on area of active recreation only.
8. Indoor and outdoor merchandise display areas.
9. Calculate associated medical office facilities as medical services, general.
10. If fixed seating is not used, then parking shall be provided at a ratio of one space/30 square feet of floor area in the assembly hall(s).
11. Parking requirements shall be in compliance with Government Code Section 65852.2. No additional parking shall be required for an accessory dwelling unit if: the unit is located within one-half mile of public transit, the unit is located within an architecturally and historically significant district; the unit is part of the existing primary residence or an existing accessory structure; or there is a car share vehicle located within one block of the unit.
12. Required parking spaces for adjacent uses can be counted towards the required parking for a tasting room as long as the hours of operations for the use do not overlap with the tasting room hours.
[Ord. 3-2019 § 5 (Exh. A); Ord. 4-2018 § 3 (Exh. A); Ord. 4-2017 § 3 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.080). Formerly 23.719.080].
A. Parking District Waiver. Minimum off-street parking requirements may be waived for properties that have access to public parking facilities. The waiver may be granted by the director.
1. Reduction for Special Motor Vehicles. Up to five percent of the off-street parking may be provided by smaller parking spaces for special or alternative motor vehicles (e.g., golf carts, motorcycles, motorized scooters).
2. Reduction for Secure Bicycle Parking. Developments which provide additional secure bicycle parking facilities over and above the minimum requirement may reduce their parking requirement by one vehicle space for every two additional bicycle spaces provided.
3. Reduction for Parking Near Major Transit Stops (e.g., light rail stations, BRT stations, or significant bus facilities). Parking requirements may be reduced by 10 percent when within one-quarter mile of a major transit stop.
b. On-site pedestrian plazas, seating areas, shelters, bicycle racks, and/or walkways.
5. Shower/Locker Facilities. Developments with 100 or more employees may reduce their parking requirement by providing shower and clothing locker facilities for bicycle-commuting employees. Maximum reduction: five percent of required parking.
6. Preferred Carpool/Vanpool Parking Spaces. Office or industrial developments which guarantee preferred parking spaces (e.g., covered, shaded, or near building entrance) to employees who participate regularly in a carpool or vanpool may reduce their parking requirement by one vehicle space for every one space which is marked and reserved for carpools/vanpools at a preferred location. Maximum reduction: five percent of required parking.
C. Joint Vehicle Parking Lot or Structure. Required parking for two or more freestanding uses on adjacent or nearby sites may be satisfied by the use of a joint vehicle parking facility to the extent that it can be shown by the owners or operators that the demand for parking in the joint facility does not materially overlay (e.g., uses primarily of a daytime versus a nighttime or weekday versus weekend nature); and provided, that such right of joint use is evidenced by a deed, lease, contract, or similar written instrument upholding such joint use. In this situation, the size of the joint parking lot shall be at least as large as the number of vehicle parking spaces required by the largest user.
1. Calculation of the minimum vehicular parking for the portion of the building occupied by the primary is based on 100 percent of the floor area.
2. Calculation of the minimum vehicular parking for the portion of the building occupied by secondary or subsequent uses may be calculated at 80 percent of the floor area.
E. Available parking in public or common parking lots and structures.
F. Additional parking reductions may be permitted as part of an adjustment process. [Ord. 4-2017 § 3 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.100). Formerly 23.719.090].
1. There is a safe, direct, attractive, lighted, and convenient pedestrian route between the vehicle parking area and the use being served.
2. There is an assurance in the form of deed, lease, contract, or other similar document that the required spaces will continue to be available for off-street parking use according to the required standards.
B. Special Requirement for Parking in Downtown District.
1. Auto parking lots shall be located behind or beside buildings on one or both sides.
2. Auto parking and maneuvering areas (including any permitted drive-through service lanes) shall not be located between the street and the building facade with the primary entrance.
3. Auto parking and maneuvering areas located to the side of a building cannot occupy more than 50 percent of the site’s frontage onto an arterial or collector roadway. When a site has more than one frontage on an arterial or collector roadway, then the auto parking lot located to the side of a building may occupy more than 50 percent of the site’s frontage on the secondary street.
4. Auto parking and maneuvering areas on corner lots shall not be located adjacent to intersections.
1. Surfacing and Striping. Areas used for parking and maneuvering of vehicles shall be paved with a minimum of two-inch asphalt, concrete, or equivalent surface. All parking areas shall be appropriately striped, marked, and signed.
2. Curb Cuts/Access Points. Street access points shall be the minimum necessary to provide access while not inhibiting the safe circulation and carrying capacity of the street. Curb cuts must comply with city street improvement standards.
3. Driveways/Driveway Approach Width and Grade. The minimum driveway width shall comply with public improvement and fire safety standards.
4. Back-Out Parking. With the exception of duplexes and single-family residences, all parking areas shall be designed so that vehicles are not permitted to back out of the parking area onto a public street.
5. Driveway/Drive Aisle Width. Driveways shall have a minimum paved width of 20 feet for two-way circulation and 14 feet for one-way circulation or according to Table 23.719-2 (Angle Parking Space and Drive Aisle Dimensions), wherever is greater. Driveways shall not occupy a yard setback or buffer except to pass through the yard in order to connect directly to a public street or as necessary for shared driveways and internal access between uses on abutting lots.
6. See RCMC 23.910.030 for drive-in and drive-through sales and services design standards.
7. Turnaround Areas. Parking spaces shall be provided with adequate drive aisles or turnaround areas so that all vehicles may enter the street in a forward manner.
8. Setback Restrictions for Parking Spaces and Drive Aisles. Parking areas including spaces, aisles, and turnaround and maneuvering areas shall not occupy the required setbacks.
9. Connect Parking Lots. Auto parking areas shall be designed to connect with auto parking areas on adjacent sites to eliminate the necessity of utilizing the public right-of-way for cross movements. Joint or shared access, internal circulation, or parking is encouraged with adjacent uses.
10. Minimum Clearance. Driveways, aisles, turnaround areas, and ramps shall have a minimum vertical clearance of 12 feet for the entire length and width, but such clearance may be reduced in parking structures.
11. Drainage. Adequate drainage shall be provided to dispose of the runoff generated by the impervious surface area of the parking area. Provision shall be made for the on-site collection of drainage waters to eliminate sheet flow of such waters onto sidewalks, public rights-of-way, and abutting private property.
12. Clear Vision Area. See RCMC 23.731.060 (Height measurement) for driveway clearance vision area requirements.
13. Service and Loading Areas. Service and loading areas shall not be located on the frontage of a light rail station or adjacent street.
D. Parking Space Dimensions and Aisle Standards for Surface Parking Lots.
1. All surface parking lots shall be designed in accordance with city standards for stalls and aisles as set forth in Tables 23.719-2 (Angle Parking Space and Drive Aisle Dimensions) and 23.719-3 (Parallel Parking Space and Drive Aisle Dimensions) and Figures 23.719-1 (Angle Parking Space and Drive Aisle Dimensions) and 23.719-2 (Parallel Parking Space and Drive Aisle Dimensions).
E. A minimum of 75 percent of vehicle parking stalls shall be of standard size (the remainder may be compact). See RCMC 23.719.070(E) (Compact Car Spaces).
F. Landscaping of Parking Lots. See RCMC 23.716.070 (Parking lot landscape).
G. Pedestrian Circulation/Walkways. Pedestrian circulation/walkways shall be designed to the requirements specified in RCMC 23.722.050 (Standards for on-site pedestrian pathways).
1. Vehicular overhang is permitted, provided no vehicle shall overhang into a sidewalk which would reduce the unencumbered width of a sidewalk to less than four feet.
2. A vehicle is permitted to overhang into a landscaped area by two feet; provided, that the required landscaped area is extended by two feet.
3. The overhang shall not count as part of the parking space dimension.
I. Lighting of Parking Lot. See Chapter 23.725 RCMC (Outdoor Lighting). [Ord. 4-2017 § 3 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.110). Formerly 23.719.100].
A. Ground Floor Active Use. For all new multi-level parking structures, a minimum of 50 percent of the total ground floor street frontage, excluding driveway entrances and exits, stairwells, elevators, and centralized payment booths, shall be designed to accommodate commercial, retail, office, or residential floor space.
1. Street-facing ground floor active uses (see subsection (A) of this section, Ground Floor Active Use).
2. Ground floor windows, doors, or display areas.
3. A repeating pattern of color change, texture change, and material change, each of which should be integral parts of the structure and not superficially applied trim, graphics, or paint.
4. The use of reveals, projecting ribs, or offsets which should be no less than 12 inches in width. All elements should repeat at intervals of 30 feet or less.
C. Lighting. Metal halide lighting shall be used for all parking structures, with uplighting being the preferred method of lighting. This allows for a more even lighting distribution across the floor and field of vision for users, accurate color rendition, and protection from lighting elements.
D. All parking structures are subject to design review as described in Chapter 23.140 RCMC (Minor Design Review) or Chapter 23.141 RCMC (Major Design Review).
[Ord. 4-2017 § 3 (Exh. B); Ord. 13-2013 § 4 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.120). Formerly 23.719.110].
A. Short-Term Bicycle Parking. If a land use or project is anticipated to generate visitor traffic, the project must provide permanently anchored bicycle racks within 100 feet of the visitors’ entrance. To enhance security and visibility the bicycle racks shall be readily visible to passersby. The bicycle capacity of the racks must equal an amount equivalent to 10 percent of all required motorized vehicle parking. There shall be a minimum of one rack with capacity for two bicycles.
1. Covered, lockable enclosures with permanently anchored racks for bicycles.
2. Lockable bicycle rooms with permanently anchored racks.
3. Lockable, permanently anchored bicycle lockers.
4. In the case of residential development a standard garage is sufficient, if available. [Ord. 4-2017 § 3 (Exh. B); Ord. 12-2011 § 3 (Exh. A). Formerly 23.719.115].
All developments shall meet the following minimum requirements for bicycle parking and design. The purpose of these design standards is to ensure that bicycle parking is visible from the buildings served, is convenient to cyclists, and provides sufficient security from theft and damage.
A. Minimum Required Bicycle Parking. Minimum required bicycle parking spaces are required as designated in RCMC 23.719.110 (Bicycle parking requirements).
B. Bicycle Parking Location and Access.
1. Use. Areas set aside for required bicycle parking must be clearly reserved for bicycle parking only.
2. Lighting. See RCMC 23.725.060 (General lighting standards).
a. Outdoor bicycle parking should be located within 100 feet, or as close as possible to the primary building entrance, without impeding pedestrian circulation or emergency access.
b. Bicycle parking must be visible from within on-site buildings or the street.
c. Bicycle parking may be located within a building if access is readily available from an outdoor entrance.
d. Bicycle parking is prohibited within 100 feet of a trash or recycling enclosure.
4. Amenities. Bicycle parking areas are encouraged to include a bench and bicycle rack screened with 30- to 36-inch shrubs from any parked cars or arterial streets.
5. Pedestrian Conflicts. Bicycle parking and bicycle racks shall be located to avoid conflicts with pedestrian movement and accessibility requirements.
C. Covered Bicycle Parking Spaces for All Uses. All required employee bicycle parking spaces and 50 percent of all visitor bicycle parking must be sheltered from precipitation by means such as roof extensions, overhangs, awnings, arcades, carports, roofed enclosures, lockers, or indoor bicycle rooms. These may be Class I parking spaces (e.g., bike lockers) or other suitable alternative.
D. Bicycle Parking for Residential Uses. When required, 25 percent of all bicycle parking for residential uses shall be provided as Class I facilities (locker, bike room, etc.).
E. Bicycle Rack Types and Dimensions.
1. Security. Bicycle parking facilities shall offer security in the form of either a lockable enclosure in which the bicycle can be stored or a rack upon which the bicycle can be locked. Bicycle parking racks, shelters, or lockers must be securely anchored to the ground or to a structure. Bicycle racks must hold bicycles securely by the means of the frame. The frame must be supported so that the bicycle cannot be pushed or fall to one side in a manner that will damage the wheels.
2. Unique artistic design facilities are encouraged. The racks/facilities should be easily identified as a bike rack.
3. Standards. Bicycle parking shall be at least one and one-half feet wide by six feet long for a single bicycle parking space or two and one-half feet wide by six feet long for two paired bicycle racks (as pictured in Figure 23.719-6) and, when covered, provide a minimum vertical clearance of seven feet. An access aisle of at least five feet wide shall be provided and maintained beside or between each row of bicycle parking. Each required bicycle space must be accessible without moving another bicycle. Bicycle parking spaces required by this chapter may not be rented or leased.
F. Paving and surfacing of bicycle parking areas shall be surfaced with hard surfacing of at least two inches minimum (i.e., pavers, asphalt, concrete, or similar material). This surface must be designed to maintain a well-drained condition.
4. Home occupations. [Ord. 4-2017 § 3 (Exh. B); Ord. 13-2013 § 4 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.130)].
A. Any vehicle, trailer, or vessel which is inoperable or vehicles that are Certified as Non-Operation or Planned Non-Operation Certified with the Department of Motor Vehicles shall be stored entirely within an enclosed structure, where it is not visible from the street or other public or private property and shall not be parked or stored in any yard within a residential zoning district or neighborhood.
B. Unless specifically permitted by this code, required off-street parking spaces shall not be located within any required front yard or required street side yard setback of any parcel. Required parking must be provided within a fully enclosed garage or carport (see RCMC 23.734.040, Development standards).
1. Vehicle parking (including driveways) within the front yard area or as seen by the public street in residential areas shall be provided on a lasting, durable surface (e.g., concrete, asphalt, or similar material). Permeable paving materials, such as paver stones, pervious concrete, or interlocking grids with gravel, are permitted as an alternative to a standard asphalt or concrete surface. Use of grasscrete, ribbon drive (Hollywood strips) or other acceptable alternatives as determined by the director may be allowed for purposes of a driving surface that leads to a legal parking area outside of the front yard area or as seen by the public street. No parking is allowed on these features within the front yard area or as seen by the public street.
2. Parking areas shall not exceed the maximum impervious surface allowed on a parcel (e.g., impervious surface in front yards is limited to 40 percent coverage).
3. Parking may not occur within any required clear vision triangle area on a corner lot.
D. Each parking space shall be at least eight and one-half feet wide by 18 feet deep.
E. Tandem (end-to-end) parking is allowed to meet the minimum off-street parking requirements.
F. Required parking may be provided in the rear yard only when an alley is available for access.
G. The minimum driveway width is 10 feet. Driveway pavement shall be five feet from the side property line in order to provide an area of landscaping between adjacent lots. Deviations from these standards may be allowed through site plan and architecture review for small-lot single-family developments at the time of master home plan review where these standards cannot be attained due to design. Remaining unpaved portion shall be landscaped, irrigated, and maintained. See Figure 23.716-2 (Nonpervious Surface Limits in Single-Family and Two-Family Residential Zones).
H. The use of structures, temporary canopies, tarps, and other similar types of covering for vehicles is strictly prohibited within the front setback.
I. Commercial vehicles shall not be parked on residential property.
1. Parking on a lasting, durable surface (e.g., concrete, asphalt, grasscrete, or permeable paving material) is required.
2. Parking within the clear vision area is prohibited. [Ord. 15-2018 § 4 (Exh. A); Ord. 7-2018 § 3; Ord. 4-2018 § 3 (Exh. A); Ord. 4-2017 § 3 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.140)].
1. Any commercial, industrial, institutional, or other use which is expected to employ 200 or more persons, as determined by either actual employee projections or equivalent development size.
2. Any existing facility or development which increases its gross floor area and, after such increase, exceeds the minimum equivalent development size.
3. The director may, if projected traffic conditions warrant, apply the provisions of this section to developments smaller than those specified.
1. Development projects expected to employ fewer than 200 persons.
2. Temporary construction activities on any affected project, including activities performed by engineers, architects, contractors, subcontractors, and construction workers.
C. Equivalent Development Size. For the purpose of this section, the standards listed in Table 23.719-4 (Equivalent Development Size) shall be considered equivalent to the 200-employee threshold.
1. The minimum development size for mixed- or multiple-use developments shall be calculated based on the employment equivalent of the square footage or areas devoted to each type of use.
D. Passenger Loading Areas. Parking areas for major development projects shall designate a passenger loading area or areas for embarking and disembarking passengers from ridesharing vehicles. Such passenger loading areas shall be located at the point(s) of primary pedestrian access from the parking area to the adjacent building(s) and shall be designed in such a manner that vehicles waiting in the loading area do not impede vehicular circulation in the parking area. The passenger loading areas shall be designed as a turn-out as indicated by Figure 23.719-7 and shall be large enough to accommodate the number of waiting vehicles equivalent to one-half percent of the required parking for the project. See Figure 23.719-7 (Passenger Loading Areas).
E. Preferential Parking Spaces for Carpool and Vanpool Vehicles. All major development projects shall reserve and designate at least 10 percent of the employee parking spaces for the project for ridesharing vehicles by marking such spaces “Carpool/Vanpool Only.” The number of preferential parking spaces must be increased above 10 percent of the employee parking as necessary to accommodate all legitimate carpools and vanpools. Such spaces shall be located near the building entrance(s), covered, shaded, or in some other obvious way be determined as preferential. For purposes of this section, the factors listed in Table 23.719-5 (Employee Parking Ratios) shall be used to determine the number of employee parking spaces.
F. Shower and Locker Facilities. All development projects above the minimum development size threshold shall provide shower and locker facilities for use by employees or tenants who commute to the site by bicycle or walking. Such facilities shall be clearly indicated on all development/improvement plans. One shower and eight lockers with minimum dimensions of 12 inches by 18 inches by 36 inches shall be provided for each 200 employees or fraction thereof, based on the equivalent development size data. The shower and locker facilities must be located convenient to one another and should be located near the employee bicycle parking facilities whenever possible. [Ord. 4-2017 § 3 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.150)].
A. Purpose of Loading Area Requirements. The purpose of these regulations is to provide the number, size, location, and screening requirements for loading areas in mixed-use, commercial, and industrial uses. The intent of these regulations is to minimize disruptions of traffic flow by freight-carrying vehicles blocking the public right-of-way and to minimize impacts to vehicular and pedestrian conflicts.
B. When Loading Regulations Apply. This regulation applies to all nonresidential development in mixed-use commercial and industrial districts, whether or not a permit or other approval is required for the development. Buildings smaller than 8,000 square feet in size are exempt from the requirements of this section.
C. General Loading Area Requirements.
1. The number of required loading spaces is based on the use of the building and the building size minus any residential component square footage.
2. Where two or more uses are located on the same premises, the number of loading area spaces required is the sum of the spaces required for each use.
3. The provision for maintenance of off-street loading facilities is a continuing obligation of the property owner.
4. Loading and maneuvering areas shall be hard-surfaced unless a permeable surface is required to reduce surface runoff, as determined by the director.
5. Parking of passenger vehicles may be allowed in off-street loading areas subject to specific time limits to prevent conflicts with off-street loading activities. If parking is allowed, the parking time limits shall be clearly posted. These parking spaces shall not count toward meeting the general parking requirements.
a. Each required off-street loading space in an industrial area shall have a minimum length of 60 feet, a minimum width of 12 feet, and a minimum vertical clearance of 15 feet inside dimensions. Off-street loading spaces in industrial zones shall also provide a 60-foot maneuvering apron in addition to the minimum length of the loading space. These requirements apply to all off-street loading spaces in industrial zones including at-grade and depressed loading docks.
b. Each required off-street loading space, other than in industrial zones, shall have a minimum length of 30 feet, a minimum width of 12 feet, and a minimum vertical clearance of 14.5 feet inside dimensions. Off-street loading spaces shall also provide a 30-foot maneuvering apron in addition to the minimum length of the loading space. These requirements apply to all off-street loading spaces including at-grade and depressed docks.
7. Loading areas must comply with the setback and perimeter landscaping and screening standards. When parking areas are prohibited or not allowed between a building and a street, loading areas are also not allowed.
8. For uses not specifically mentioned, the requirements for off-street loading facilities shall be the same as the closest approximate use as determined by the director.
D. Location of Required Loading Facilities.
1. The off-street loading facilities, including the required maneuvering apron, in all cases, shall be on the same lot or parcel of land as the structure they are intended to serve.
2. The off-street loading facilities shall be designed and located so that loading vehicles do not encroach upon required setbacks, driveways, or required parking spaces during maneuvering and loading activities.
3. No loading space, including the required maneuvering apron, shall be located so that a vehicle using such loading space projects into any public street or any adjoining property except in the case of a reciprocal access agreement or similar mechanism.
4. Loading spaces shall be provided with access to an alley when alley access is available.
5. Bays and doors shall be located in a manner that would preclude any possibility for trucks to back into bays from arterial streets. [Ord. 4-2017 § 3 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.160)].

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By Michael E. McCabe, Jr.
Mariano Rivera knows something about perfection. The New York Yankees now-retired pitcher is regarded by many experts as the greatest closer in the history of major league baseball. For those who are not aficionados of America’s Pastime, the closer comes in after the game has largely been played, and his sole job is to get the last several opposing batters out. For seventeen seasons, Mariano Rivera (a.k.a. “the Sandman”) dominated at his position and was virtually unhittable.
The USPTO Director also knows something about perfection, albeit in a far different context than baseball. For six years, the USPTO Director has dominated opposing patent practitioners, who have gone hitless against the Office in cases involving reciprocal ethical discipline.
While the USPTO’s unblemished record under Section 11.24 might seem obnoxiously lopsided, the numbers are not that surprising once consideration is given to the nature of reciprocal discipline and the standard applicable in such matters. Two questions commonly arise when a USPTO practitioner has first been publicly disciplined by another jurisdiction. First, can the practitioner or OED Director re-litigate the disciplinary action before the USPTO? Second, regardless of whether they can re-litigate, can either party challenge, before the USPTO, the disciplinary sanctions imposed in the other jurisdiction. The answers to these questions are set forth in 37 C.F.R. § 11.24.
Before delving into the weeds of Title 37, some higher level background assists in understanding the analysis codified in Section 11.24. The starting point is the decision of the Supreme Court of the United States in Selling v. Radford, 243 U.S. 46 (1917). See In re Portner, No. D2011-44, at 4 (USPTO Dir. June 22, 2012) (acknowledging reciprocal discipline under 37 C.F.R. § 11.24 based on Selling).
Selling involved an attorney admitted to the Michigan and United States Supreme Court bars, but ultimately disbarred in Michigan. Id. at 47. The Solicitor General of the United States sought the attorney’s disbarment from the Supreme Court based on the Michigan disbarment. Id. The Supreme Court observed the loss of an attorney’s right to practice in one jurisdiction “must in the nature of things furnish adequate reason in every jurisdiction for taking away the right to continue to be a member of the Bar in good standing.” Id. at 49. The Court explained “we have no authority to re-examine or reverse as a reviewing court the action of the Supreme Court of Michigan.” Id. at 50. The Court further found “the necessary effect of the action of the Supreme Court of Michigan . . . unless for some reason it is found that it ought not to be accepted or given effect to” is to “absolutely destroy” the attorney’s “right to continue to be a member of this Bar.” Id.
That the state procedure from want of notice or opportunity to be heard was wanting in due process; 2. that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not consistently with our duty accept as final the conclusion on that subject; or 3. that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice, we were constrained so to do.
The Selling case planted the seeds for a process that is today uniformly referred to as reciprocal discipline. Since Selling was decided, “every state in the country has [adopted] a ‘reciprocal’ discipline rule.” See Attorney Grievance Comm’n of Maryland v. Whitehead, 390 Md. 663, 680 n.12 (2006) (surveying the reciprocal discipline rules in every state). As noted in Whitehead, many jurisdiction have adopted, either verbatim or in substance, the American Bar Association’s Model Rules for Lawyer Disciplinary Enforcement DR 22 (2001) (“ABA Model Rules”). The Model Rules state “a judicial determination of misconduct . . . by the respondent in another jurisdiction is conclusive, and not subject to re-litigation in the forum state.” 390 Md. at 680 n.12 (citing ABA Model Rule DR 22). Pursuant to the ABA Model Rules, the court “shall impose the identical discipline . . . unless disciplinary counsel or the lawyer demonstrates” that any of the enumerated exceptions set forth in Selling exist. 390 Md. at 680 n.12 (quoting ABA Model Rules DR 22 cmt.). The court in Whitehead further recognized some states require reciprocal discipline by their use of the words “shall” or “will,” while in other jurisdictions reciprocal discipline is permissive but not mandatory. See id.; see e.g., D.C. Rule of Discipl. Enforc. Rule XI, Section 11(c) (stating reciprocal discipline “shall be imposed” in the District of Columbia “unless the attorney demonstrates” one of the Selling exceptions applies).
The USPTO Rule on reciprocal discipline, 37 C.F.R. § 11.24, was promulgated “to provide procedures for reciprocal discipline of a practitioner” before the USPTO. 73 Fed. Reg. 47650, at 47655 (Final Rule Aug. 14, 2008). The rule applies whenever “a practitioner who is subject to the disciplinary jurisdiction of the Office  has been publicly censured, publicly reprimanded, subjected to probation, disbarred or suspended in another jurisdiction.” Id.; see also 72 Fed. Reg. 9196, at 9201 (Supp. Not. of Prop. Rule Making Feb. 28, 2007) (explaining under section 11.24 that, “If an attorney has been disbarred or suspended in another jurisdiction, reciprocal discipline before the Office applies regardless of whether the practitioner remains registered as an attorney or agent.”).
Section 11.24 sets forth a step-by-step procedure that applies whenever a “practitioner” (i.e., an individual subject to the disciplinary jurisdiction of the USPTO) has been ethically disciplined by another jurisdiction. As a threshold matter, the procedure in Section 11.24 is a significant departure from how the Office normally initiates and prosecutes practitioners for violating the USPTO’s ethical rules. In the context of the “usual” (non-reciprocal discipline) action, the OED Director convenes a panel of the Committee on Discipline, which serves as a kind of grand jury.
The Committee decides whether the OED Director has shown that probable cause exists to file disciplinary charges. The burden of proving probable cause is not particularly onerous, especially since the practitioner is not permitted to appear and it is the OED Director’s “show.” If (more likely when) probable cause is found, the OED Director files a disciplinary complaint with an administrative law judge. 37 C.F.R. §§ 11.32, 11.34. The matter then proceeds like a typical administrative agency adjudication, including pleadings, motions practice, discovery, and a trial before the ALJ. 37 C.F.R. §§ 11.34-11.54. In such proceedings, the OED Director bears the burden of proving, by clear and convincing evidence, the practitioner violated one or more of the Office’s ethics rules. The initial decision of the ALJ becomes final in thirty (30) days unless one of the parties seeks review by the USPTO Director, in which case the Director makes the final decision. 37 C.F.R. §§ 11.55-11.56.
An order directing the practitioner to file a response with the USPTO Director and the OED Director, within forty days of the date of the notice establishing a genuine issue of material fact showing why the imposition of the identical public discipline is unwarranted.
Once the notice requirements set forth in Sections 11.24(a) and (b) have been satisfied, Section 11.24(d) dictates the manner in which the disciplinary hearing shall proceed. In accordance with Section 11.24(d), “the USPTO Director shall hear the matter . . . .” 37 C.F.R. § 11.24(d)(1). Furthermore, unless “the USPTO Director determines that an oral hearing is necessary,” the USPTO Director “shall” hear the matter “on the documentary record.” Id.
What occurs next in the process depends completely upon whether the practitioner chooses to exercise his or her right under 37 C.F.R. § 11.24(b)(3) to “file a response with the USPTO Director and the OED Director . . . . establishing a genuine issue of material fact . . . . that the imposition of the identical [sanction imposed by the other jurisdiction] would be unwarranted and the reasons for that claim.” If the practitioner fails to file such a response, then it is “game over” – the USPTO Director “shall impose the identical public censure, public reprimand, probation, disbarment, [or suspension . . . .” imposed by the other jurisdiction. 37 C.F.R. § 11.24(d)(1).
The practitioner was not, in fact, disciplined in the other jurisdiction.
Several points are noteworthy about how the reciprocal discipline process differs from ordinary USPTO disciplinary proceedings. First, the burden of production and persuasion is always with the practitioner, not the OED Director. Second, the practitioner must meet the “clear and convincing” standard. If the practitioner fails to respond (or if the response fails to meet his or her burden), then whatever public discipline was imposed in the other jurisdiction is also imposed by the USPTO Director. Third, only the practitioner has standing to seek a different disciplinary sanction. Neither the USPTO Director nor the OED Director has standing to seek a greater disciplinary sanction than the sanction imposed by the other jurisdiction. In other words, the discipline imposed by the other jurisdiction operates as a ceiling, not a floor, to the reciprocal discipline the USPTO may impose.
The analysis in a reciprocal discipline case quickly collapses to one issue: whether the practitioner has provided the USPTO Director with evidence sufficient to raise a genuine issue of material fact that one of the Selling factors exists: i.e., denial of due process, infirmity of proof, or grave injustice. Re-litigation of the merits of the other jurisdiction’s disciplinary decision is not an option for either the practitioner or the OED Director. Indeed, the USPTO Director has consistently interpreted 37 C.F.R. § 11.24 as both prohibiting re-litigation and providing for “narrow” review of limited issues. See In re Brufsky, No. D2013-12, at 3 (USPTO Dir. Feb. 4, 2014) (holding the standard under Selling is “narrow” and that “[‘a Federal court, or here, the USPTO Director] is not sitting as a court of review to discover errors in the [hearing judge’s] or the [state] court’s proceedings.’”) (parentheticals in original) (citing In re Zdravkovich, 634 F.3d 574, 578 (D.C. Cir. 2011)); In re Shippey, No. D2012-02, at 6 (USPTO Dir. June 11, 2012) (explaining 37 C.F.R. § 11.24 provides “no entitlement to a de novo review” of the state disciplinary proceeding and the USPTO’s review is “‘extremely limited’”).
In the six years since Section 11.24 went into effect, the overwhelming majority of respondents (64 of 77, or 83%) failed to submit a response to the USPTO Director’s show cause notice. In all of those cases, the USPTO Director imposed the same sanction imposed by the other jurisdiction.
In the remaining thirteen (13) matters, the practitioner submitted evidence and argument attempting to show the existence of a genuine issue of material fact under the Selling factors in Section 11.24(d). In every case, the USPTO Director denied the practitioner’s request, finding the practitioner failed to make the requisite showing needed for the USPTO even to consider imposing different discipline than what was imposed in the other jurisdiction. In essence, in each one of those cases, the USPTO treated the practitioner’s response much as a district court treats a Rule 56 motion for summary judgment – the USPTO Director has found every time the respondent failed to raise any genuine issue of material fact and thus entered judgment as a matter of law imposing the same discipline against the practitioner that was imposed in the other jurisdiction.
The burden of overcoming the presumption of imposing identical discipline before the USPTO is designed to be difficult. Indeed, as long as the practitioner received legally effective notice of the prior proceeding and had an opportunity to participate, as a practical matter it is not possible for the practitioner to show any denial of due process or “infirmity of proof.” Furthermore, the USPTO generally applies an irrebuttable presumption that whatever sanction was good enough for the other jurisdiction is good enough for the USPTO. Consequently, it is difficult indeed to raise a “grave injustice” argument sufficient to generate any genuine issue of fact. The USPTO Director readily acknowledges the difficulty practitioners face in attempting to raise a challenge under Section 11.24(d). See In re Portner, No. D2011-44, at 5 (USPTO Dir. June 22, 2012) (“The Office reiterates that, to prevent the imposition of reciprocal discipline, Respondent is required to demonstrate that he meets one of these [section 11.24(d)] factors – a task that is particularly difficult for Respondent because he stipulated to the facts” in the prior proceeding). In reality, it will take quite an unusual set of circumstances for a practitioner to make an adequate showing required by Section 11.24(d).
If “the USPTO Director determines there is no genuine issue of material fact” regarding the factors set forth in Section 11.24(d)(1)(i)-(iv), then “the USPTO Director shall enter an appropriate final order.” 37 C.F.R. § 11.24(d)(2). “Appropriate” in this context means a written order imposing “identical” discipline to what was imposed by the other jurisdiction. See id. at § 11.24(d)(1).
If, and only if, the USPTO Director determines there is a genuine issue of material fact under one or more of the Selling factors—which has never happened in six years—the matter is still not resolved. All that means is the USPTO Director “shall” refer the matter to a hearing officer for an initial decision on whatever fact issue the Director found to exist. 37 C.F.R. § 11.24(d)(2)(i)-(ii). In the end, the practitioner could still find themselves subject to the same discipline in the USPTO that was imposed by the other jurisdiction.
It should be apparent that in light of the near impossibility of overcoming a reciprocal sanction in the USPTO, the question of which jurisdiction disciplines the practitioner first can be very important. Take, for example, the case of (former) patent attorney, Leonard Tachner. In re Tachner, No. D2012-30. (USPTO Dir. April 12, 2013). Mr. Tachner worked for decades as a solo patent attorney. In several separate client matters, patents expired for failure to pay maintenance fees as the result of Mr. Tachner’s employees’ failure to properly docket the deadlines. The OED Director filed a disciplinary complaint alleging Mr. Tachner engaged in a “pattern of neglect” in the management of his office, including using an unsound docketing system, inadequate staffing, and failure to supervise. Ultimately, the parties settled. Although the USPTO noted as a mitigating factor that Mr. Tachner had practiced for forty (40) years without any discipline, the sanction he received was severe – a five year suspension from practice before the USPTO.
A reciprocal disciplinary proceeding was subsequently filed against Mr. Tachner in the State Bar Court of California. In re Tachner, Case No. 13-J-12527 (Cal. State Bar Ct. Oct. 18, 2013). The California bar considered the same findings of fact and conclusions of law already determined by the USPTO. The California bar court found Mr. Tachner’s 40-year discipline-free history to be a significant mitigating factor and suspended Mr. Tachner’s state bar license for three (3) months – one-fifteenth the length of the suspension meted out by the USPTO. Since Mr. Tachner’s practice was largely in patent and trademark matters before the USPTO, the fact that California only suspended him for 90 days was truly a pyrrhic victory.
It would have been interesting to posit what would have happened if Mr. Tachner had been disciplined first by the California State Bar Court. If he received a three-month suspension in California, then, pursuant to Section 11.24, the USPTO Director would have been obligated to impose no greater than the same three-month suspension. Unfortunately for Mr. Tachner, the USPTO got to him first.
Section 11.24 provides an expedient process for avoiding duplicative disciplinary proceedings against IP practitioners who have been disciplined in another jurisdiction. While only the practitioner has standing to raise a challenge before the USPTO under Section 11.24, such challenges are easier said than done. If past history is any indication of future success, a most unusual set of circumstances will be needed if a USPTO practitioner is to prevail against “the Sandman” in a reciprocal discipline proceeding.
Michael E. McCabe, Jr. is a patent litigator and partner with Funk & Bolton, P.A., in Baltimore, Maryland, where he chairs the Attorney Ethics and Discipline practice group. For more than a decade, Mr. McCabe has represented IP attorneys, patent agents, and law firms in matters involving the cross-section of intellectual property and legal ethics. He advises clients on risk management, loss prevention, and compliance with the USPTO’s rules of professional responsibility. In addition, Mr. McCabe represents intellectual property practitioners in OED investigations and contested matters before the USPTO. Mr. McCabe is the creator and editor of IPethics & INsights, a law blog and resource for members of the intellectual property and professional underwriting community who are interested in intellectual property ethics, IP malpractice, and attorney and agent discipline, including the latest USPTO and court decisions, news, and analysis. Mr. McCabe can be reached through his blog or by email at mmccabe@fblaw.com. He loves baseball and is a diehard Washington National’s fan.
It would be an interesting scenario if a practitioner prevailed in a disciplinary proceeding before the OED and then was disciplined by a state bar for the same set of events. I wonder what would happen back at the USPTO?
I wonder what discipline will be instituted against Schroeder?
I don’t think I read that one before — I’ve thought the same thoughts, but there is a good reason I always proof what I wrote after a “cool down” period. It allows me the remove the snarkier comments (although nothing even close to that bad) once my anger subsides.
As far as reciprocal discipline goes, I’m sure they have a rubber stamp for that as well.
I completely agree with Patent Leather. It would be nice if the lawyer would focus on the proceedings and then look into the state bar for similar cases.
I agree fully with the need for a “cool down” period, especially in the age of instant messaging. Regarding Schroeder, no public record exists of any discipline (yet) either in the USPTO or California. Presumably the OED is investigating. Assuming Schroeder actually said what various sources claim he said, his rantings on behalf of a client are so bizarre that, at the very least, the OED likely will want to understand whether this was just “one off” behavior or if it is part of a pattern. OED says its primary mission is to protect the public. At least this one client could not have benefited from the filing, and certainly questions can be raised regarding competence and improper filings as possible bases for ethics charges. While we may never know what, exactly, was Schroeder’s motivation, I note he works in Hollywood as a sole practitioner. I wonder if he wrote this piece knowing it would likely go viral, which would get his name out in the public. If his true intention was publicity, then it seems to have worked for him. Although I am fairly certain “attention gathering” is not a cognizable affirmative defense in a bar disciplinary proceeding.
(“Complaint”) with a hearing officer.
Gazette pursuant to 37 C.F.R. § 11.35(b).
AAA JJ – Good catch. If you check out Mr. Schroeder’s website, it would appear he is still actively practicing. But websites can be misleading. If he wants to continue practicing law, taking a default in a disciplinary matter is never a good idea. He will get slammed not only on the underlying ethics charges but also for for failing to participate in the proceedings. Since it is the practitioner’s burden to raise affirmative defenses or to present evidence in mitigation, the sanction imposed on a defaulting practitioner is usually harsh. See, e.g., In re Worrell, Proceeding No. D2014-06 (July 7, 2014) (initial decision granting OED motion for default judgment and ordering practitioner excluded).
Behave yourself in all jurisdictions.
Thank you for sharing this informative article on reciprocal discipline. I have been looking for the right term about this and finally got it. It’s very interesting indeed.
@Michael E. McCabe – I just checked his site and it seems legit. but you’re right, site could be misleading and perhaps run by his colleagues or someone else.