Territorial Zoning: Concept, Scope, Types

According to S.A. Bogolyubov, as in other areas of legislation and other branches of law and science, the analysis of content-related representations in legal ecology begins with the development and comparison of concepts and terms denoting them, which ultimately determine the scope, boundaries of the considered issues, a set of ways to solve them, and prospects and effectiveness of legislative activity¹.

The analysis of the conceptual apparatus constitutes an important part of this research, since clarifying the meaning and content of the main terms used in the dissertation will allow forming a necessary basis for achieving the goal and accomplishing the tasks of the study. The absence of legal definitions of terms used in legislation often gives rise to discussions, including regarding their essence, content, place within the system of the branch or branches of law, as well as their relationship with other concepts. This situation is not an exception in the considered context either, as regards the definition of the concept of "territorial zoning." The mentioned term is used in a multitude of laws; however, its legal definition is absent. It should also be noted that in ecological law science, considerable attention has been devoted to the study of individual issues of legal regulation of territorial zoning. However, a unified approach to defining the content of territorial zoning has not yet been formed at present.

According to Yu.G. Zharikov, territorial zoning is a legal activity aimed at developing and implementing rules for the construction of territories of urban and rural settlements, other municipal formations. During zoning, the territory of the settlement is divided into several zones with the determination of types of land use for each individual settlement². It is characteristic that in this definition, zoning of territories is considered precisely as a legal activity. At the same time, it is also important to emphasize that Yu.G. Zharikov understands territorial zoning as urban planning zoning in the terminology of the Urban Planning Code of the Russian Federation (hereinafter - UPC RF).

Similar positions are held by O.I. Krassov³, O.M. Kozir⁴. Some foreign scholars also equate territorial zoning with land-use zoning. For example, one of the first prominent specialists in zoning in the state of Massachusetts, Philip Nichols (The Massachusetts Law of Zoning and Planning, 1943), proposed the following description of the basic principles of modern zoning: zoning involves dividing a city into districts carried out by an authorized body; in each such district there is a prohibition on using land for certain purposes, which although safe on their own, harm public welfare by creating obstacles to the use of land for those purposes for which it is best suited⁵.

At the same time, another position is expressed in scientific literature. For example, according to N.V. Kichigin, zoning, in general terms, involves dividing a certain territory in accordance with established criteria into several zones and defining a special regime for each of them (ecological restrictions on economic and other activities, differentiated sizes of rent payments, etc.)⁶. This definition expresses a broader approach to zoning territories, where territorial zoning is not limited exclusively to urban planning zoning, but represents the determination of zones and their special regime.

As noted by A.P. Anisimov, G.L. Zemlyakova, and N.N. Melnikov, currently zoning is usually understood as urban planning zoning, although the latter is no more than a specific case of the general procedure of zoning⁷.

E.K. Trutnev considers zoning as a general term encompassing various types. E.K. Trutnev classifies the types of zoning as urban planning zoning, zoning in territorial planning documents, land plot zoning, as well as the establishment of zones with special conditions for territory use⁸. Such an approach to zoning is quite broad. However, E.K. Trutnev does not include the zoning of specially protected natural territories (for example, zoning of the Baikal Natural Territory, zoning of specially protected natural territories) in the definition of this concept.

Some scholars define territorial zoning through the properties and qualities of land within defined zones. For example, according to V.E. Churkin, territorial zoning is the establishment of boundaries of territories (zones), within which lands have properties and qualities necessary and sufficient for a specific economic activity⁹.

In scientific literature, zoning is also considered as a process of dividing territory into zones. As noted by O.A. Zolotova, analysis of legislation mentioning zoning allows us to conclude that zoning represents the process of dividing territory into parts - zones, with the aim of establishing a uniform regime of land use within the boundaries of this zone. Zoning of territory allows for clarification or detailing of the legal regime of using this territory. Zoning may apply to a group of land plots or part of a land plot, which expands the legislature's opportunities to restrict business and other activities of individuals and legal entities on certain territories¹⁰.

According to M.Yu. Galyatin, land use zoning represents a legal method of state regulation of the use of private land ownership, which consists in separating different types of land use and establishing their socially significant parameters by designating target land use zones within administrative units, setting up an appropriate legal regime within their boundaries, and monitoring its observance¹¹.

The territorial zoning according to N.L. Lisina includes two types of zoning¹², in the terminology of this study, it is functional zoning during the implementation of territorial planning¹³ and urban planning zoning¹⁴. At the same time, N.L. Lisina suggests distinguishing territorial zoning from special restricted zones¹⁵.

Analysis of the positions presented by scholars allows us to conclude that there are two approaches to zoning territories in legislation and scientific literature: broad and narrow. In a narrow sense, territorial zoning is equated with urban planning zoning. In a broad sense, territorial zoning includes a set of various types of zoning (including urban planning zoning, ecological zoning, functional zoning).

In our opinion, adhering to a narrow approach to land zoning leads to the denial of the very possibility of existence of other types of land zoning, where land is the object (other than urban planning zoning). Implementation of a narrow approach to land zoning contradicts the presence in legislation of norms regulating social relations related to other types of land zoning (not being urban planning zoning), where land is the object (for example, ecological zoning of the Baikal Natural Territory¹⁶, functional zoning within the framework of the territorial planning institution¹⁷).

In turn, considering zoning of territories in a broad sense will contribute to the systematization of types of territorial zoning provided for by legislation and currently sufficiently fragmented. Studying territorial zoning in a broad sense allows applying integrated and differentiated approaches to territorial zoning. Within the framework of an integrated approach, it is possible to study territorial zoning comprehensively, contributing to the formation of a system of types of territorial zoning.

Within the framework of a differentiated approach to territorial zoning, it is possible to consider each type of territorial zoning separately, including identifying the specifics of each type of territorial zoning. A broad approach to territorial zoning will contribute to the systematization and development of norms on territorial zoning applicable to all categories of land. Thus, a broad approach to territorial zoning appears preferable.

An important direction in the systematization of norms regulating social relations related to land zoning is the distinction between the concept of "land zoning," used in the Land Code of the Russian Federation (hereinafter - LC RF), and the concept of "urban planning zoning," used in the Urban Planning Code of the Russian Federation (hereinafter - UPC RF). According to E.L. Minina, land zoning under the LC RF refers only to lands of populated areas, where, according to Article 85, territorial zones are established in accordance with urban planning regulations. Other categories of land are not mentioned¹⁸.

A similar position is held by O.I. Krassov, who believes that one of the fundamental differences between territorial zoning and urban planning zoning lies in the following. As stipulated by the Land Code of the Russian Federation, territorial zoning was supposed to be carried out only with respect to land plots within populated areas. Since the interests of the construction lobby are not limited to the development of land plots within populated areas, urban planning zoning was extended to certain other categories of land¹⁹. However, there is also a position asserting the identity between territorial zoning under the Land Code of the Russian Federation and urban planning zoning under the Urban Planning Code of the Russian Federation²⁰.

In scientific literature, emphasis is placed on the absence of a unified approach to zoning territories and permitted land use in relation to lands of all categories. As noted by A.P. Anisimov, G.L. Zemlyakova, and N.N. Melnikov, currently, land legislation lacks a single understanding applicable to all categories of land regarding what zoning is and what permitted use, which results from it. The content of the zoning procedure and permitted use is most clearly defined by urban planning legislation. Meanwhile, the term "permitted use" is mentioned in the Land Code of the Russian Federation for all land plots (there are no exceptions even for reserve lands). This implies a need to supplement the Land Code of the Russian Federation with a special chapter that would establish general provisions on zoning, regulations and content of the legal construct "permitted use of a land plot," as well as specifics of implementing these procedures for different categories of land. The issue requires special consideration: how many types of permitted uses should be established for land plots of different categories (for example, according to Article 37 of the Russian Land Code, there are three permitted uses for land plots within populated areas)²¹.

A similar position is held by P.N. Pavlov, who notes that the concepts of "territorial zoning" and "territorial zone" are not yet accepted for use in relation to lands of most categories of land. However, the nature of relationships arising from the division of lands of certain categories (the delineation of specific territories, establishing their boundaries, and defining a special legal regime for these territories) allows us to assert that norms regarding types of land are, in essence, norms regarding territorial zoning. Thus, norms regarding the division of forest fund lands into groups of forests, categories of protection for first group forests, and specially protected forest areas can fully be regarded as norms on territorial zoning²².

As noted by S.A. Bogolyubov, the principles proclaimed in the law are not only abstract postulates recommended for study within an academic discipline, but also serve as a guideline for law enforcement activities – administrative, judicial, and arbitral practice²³. In our opinion, the principle of land legislation established by sub-item 8 of item 1 of article 1 of the Russian Land Code²⁴ applies to all lands, not only to lands of populated areas. However, in the Russian Land Code this principle of land legislation has not been fully implemented, since the provisions of the Russian Land Code provide for regulation of social relations related to territorial zoning exclusively on lands of populated areas.

Taking the above into account, we consider that at present the system of territorial zoning, which includes a variety of types of territorial zoning, is yet to be formed. It appears that urban planning zoning within such a system should become one of the types of territorial zoning. However, it is necessary to agree with the positions presented by scholars that currently, territorial zoning in the Land Code of the Russian Federation (ZK RF) in terms of content is identical to urban planning zoning in the Urban Planning Code of the Russian Federation (GrK RF). The difference lies only in the fact that in the GrK RF an attempt has been made to develop the provision of the principle of land legislation (subparagraph 8 of paragraph 1 of article 1 of the ZK RF) by implementing urban planning zoning not only with respect to lands of populated areas, but also lands of other categories which are not included in the exhaustive list of lands for which urban planning regulations are not established²⁵.

At the same time, the arguments of scholars regarding how justified it is to refer to such zoning as urban planning (for example, in relation to land use zoning for agricultural lands that are not agricultural areas and for which, according to paragraph 6 of Article 36 of the Urban Planning Code of the Russian Federation, an urban planning regulation is established) deserve attention. However, in order to most accurately define the legal regime of lands, it appears that the object of zoning should be not only territories within the boundaries of lands for which an urban planning regulation is established (paragraph 6 of Article 36 of the Urban Planning Code of the Russian Federation). This position is supported by scientific literature; for example, E.V. Pantin justified the necessity of zoning agricultural land within agricultural lands²⁶. At the same time, E.V. Pantin suggests carrying out the zoning of agricultural areas not within the framework of urban planning zoning, but as a separate type of territorial zoning, which appears to be justified.

As a result of comparing the provisions of the Russian Federation Land Code and the Russian Federation Urban Planning Code in terms of urban planning zoning, one can come to the conclusion about duplication of certain provisions of these laws. First of all, this refers to the duplication of the provisions of Article 85 of the Land Code of the Russian Federation and Article 35 of the Urban Planning Code of the Russian Federation, which provide for types and composition of territorial zones.

It should also be noted that the duplication of these laws' provisions concerns the provision regarding the possibility of landowners and owners of capital construction objects to independently choose any type of permitted use provided by zoning of territories (paragraph 2 of point 2 of Article 7 of the Land Code and part 4 of Article 37 of the Urban Planning Code of the Russian Federation).

It is also important to note the collision of the aforementioned norms. Paragraph 2 of point 2 of article 7 of the Land Code establishes the possibility for landowners and owners of capital construction objects to independently choose any type of permitted use provided by the zoning of territories. Whereas part 4 of article 37 of the Civil Code of the Russian Federation establishes the possibility for landowners and owners of capital construction objects²⁷to independently choose only main and auxiliary types of permitted use. The above provision of the Civil Code of the Russian Federation appears to us more accurate, since the choice of conditionally permitted type of land use cannot be carried out exclusively at the discretion of the landowner and owner of the capital construction object.

The choice of a conditionally permitted land use or type of capital construction is carried out in accordance with the procedure established by Article 39 of the Land Code of the Russian Federation (which, among other things, provides for public hearings on this issue). Such a conflict may lead to the selection of a conditionally permitted land use and capital construction without following the procedure provided for by Article 39 of the Land Code of the Russian Federation (including without taking into account the opinion of the population), which appears to be unjustified.

It appears that the presence of provisions on urban planning zoning in the Russian Federation's Land Code was justified prior to the adoption of the Urban Planning Code of the Russian Federation (which now thoroughly regulates issues related to urban planning zoning). After the adoption of the Urban Planning Code of the Russian Federation, there was no longer a need to regulate social relations related to urban planning zoning within the framework of the Land Code of the Russian Federation. Furthermore, urban planning zoning is subject to regulation by legislation on urban planning activities. In this regard, it is proposed to exclude the aforementioned provisions on territorial zoning from the Land Code of the Russian Federation in order to eliminate duplication with similar provisions in the Urban Planning Code of the Russian Federation.

In scientific literature, emphasis is placed on the comprehensive, multi-faceted legal nature of territorial zoning²⁸. Scholars consider territorial zoning, among other things, as a means (method, a set of legal instruments) for determining the legal regime of land.

In scientific literature, it is noted that zoning is characterized by spatial and temporal features. The first of these means that the boundaries of a particular zone must be clearly defined and marked both in documents and on the ground; the characteristics of the zone should be described and its total area determined. The second feature may manifest in two ways: when a zone is established for a certain period (in years), until the occurrence of a specific condition, for an indefinite period (zones in national parks) or when review periods for zones are set²⁹. However, taking into account the positions presented by scholars, we believe that along with spatial and temporal characteristics, it is also possible to identify a legal characteristic of territorial zoning.

O.I. Krassov also considers evaluative zoning. The purpose of this type of zoning is to create a map (scheme) of evaluation zones and to establish the cadastral value per unit area within these zones. Evaluative zoning has no direct relation to determining the legal regime of land³⁰.

It appears that in cases where a certain type of territorial zoning does not directly affect the legal regime of land, it is appropriate to speak about the impact (indirect influence) of such a type of territorial zoning on the legal regime of land (this issue is considered in more detail in paragraph 3 of chapter II and in paragraph 1 of chapter III of this dissertation).

In light of the above, for the purposes of this study, zoning is considered as the definition of zones within the boundaries of a territory that is the subject of a specific type of land use zoning, and the determination of the legal regime or impact on the legal regime of such zones. In this context, defining zones involves: 1) establishing zone boundaries; 2) assigning names to zones (for example, "residential zone," "atmospheric influence zone") and in certain cases assigning conditional designations to these zones (for example, "Ж-1", "О-1").

In scientific literature, there is also an opinion expressed that the zoning of individual land plots provided for by sanitary and epidemiological rules (SP 2.2.1.1312-03) and the order issued by the Chief State Sanitary Doctor of the Russian Federation dated April 30, 2003, No. 88 does not affect the legal regime of land³¹. It is important to note that zoning of land plots is not equivalent to territorial zoning and accordingly is not the subject of this study.

A separate consideration is warranted regarding the types of land zoning and the establishment of a list of land zoning categories. As noted by N.V. Kichigin, federal legislation provides for several types of zoning: ecological, pricing, and urban planning³². At the same time, scholars emphasize the lack of systematization in regulations concerning various types of land zoning³³.

In scientific literature, the specific content of the zoning principle is also noted. In connection with environmental protection tasks, legal regulation of natural resource use and ensuring ecological safety of population and territories, this principle is implemented as follows: a) establishment of zones of extreme ecological situation or ecological disaster; b) establishment of protective zones for individual environmental objects (water protection zones, mining-sanitary protection zones (circles) and others); c) zoning within specially protected areas (for example, zones of the Baikal Natural Territory); d) zoning during urban planning activities, which in accordance with the Urban Planning Code of the Russian Federation dated December 29, 2004 is called territorial³⁴.

I.F. Pankratov, offering a sufficiently extensive list of types of environmental zoning, noted that this list of environmental zoning objects is not closed and cannot be closed, since new and new objects of environmental zoning may always appear³⁵. The position presented appears to be justified and equally applicable both to environmental zoning (as a type of land zoning), as well as to land zoning in general.

Having regard to the above, it is concluded that an open list of land use zoning types is preferable, as it will allow for the creation of new types of land use zoning reflecting the dynamics of social relations associated with land use zoning, in order to most accurately define the legal regime of lands. In this context, special importance is attached to ensuring the systematization of various types of land use zoning, defining the relationship between such types of land use zoning and the classification of lands by purpose, as well as establishing zones with special conditions for land use.

[11] Legal protection of Lake Baikal: a scientific and practical guide / Ed. Yu.I. Shuplecova. Moscow, 2011. P. 98 – 99.

2007. P. 241.