Features of Territorial Zoning in the United Kingdom, Germany, and the United States of America
As noted by S.A. Bogolyubov, the necessity of intensifying efforts in environmental protection, the entry of our country into the European and universal community imply: consideration, analysis and use of key legal achievements developed by world civilization; unbiased comparison of these with traditional forms of natural resource use that have proven themselves in our country; search and development of ways to overcome difficulties associated with the psychological, political, economic, cultural state and level
of the population, lacking a ready apparatus and mechanism for implementation1. Thus, it appears reasonable to examine the peculiarities of legal regulation of territorial zoning in foreign countries.
In literature, it is noted that hypothetically there exist two regulatory technologies - one-stage technology and two-stage technology. One-stage technology is when the general plan contains «everything» - both functional zoning with functional zones, and [urban planning zoning](/enc/12137/ "Definition of the term
"Urban planning zoning" in the legal encyclopedia with urban planning regulations. The two-stage technology refers to when there is a general plan with functional zoning and there is a normative legal act - rules of land use and construction with urban planning regulations2. For the purposes of analysis, countries were selected where, like in Russia, the two-stage approach is also applied
technology.
The British government pays significant attention to issues related to improving local democracy. Within the general trend towards decentralization of state power while simultaneously maintaining a strong central role, measures on the development of local self-government3 acquire particular importance.
The territorial organization of metropolitan areas in England provides for 33 municipal borough councils in London and 36 municipal borough councils in six other metropolitan areas. In addition, there are 39 counties without city status, each of which has a council of the county. On the territory of these 39 counties, there are 296 district councils4.
In the United Kingdom, the main legislative acts relating to territorial planning are: Act on Urban and Rural Planning 1990; Act on Planning in Relation to Monuments and Reserves 1990; Act on Planning in Relation to Hazardous Substances 1990; Act on Planning and Compensation for Losses 19915.
As noted by Steven Butler, in England matters related to urban development fall under the jurisdiction of the Department of Environment within the Ministry of Environment. At the local level in England, a system of two-part urban development plans is used. The first part is the "structural plan," which is developed as a mandatory document for each county. The second part is the "[local](/enc/32050/ "Definition of 'Local' in the legal
encyclopedias") plan, which must now be developed for all territories of England.
Cameron Blackhall points out that county authorities are responsible for preparing the structural plan, as well as the mineral plan and the waste disposal plan for the entire county territory. Local plans should be prepared by each of the districts and represent a specification of the structural plans. The structural plan is adopted by the county council, local plan is adopted by the district council6.
The structural plan is not a land use plan but a strategic plan, in which the strategy of development is outlined with separate cartographic materials or without them. The local plan also contains a detailed exposition of the development strategy and is usually accompanied by a map ("map of proposals"). None of the plans include functional zoning7. It should be noted that in Russia, territorial planning documents of local self-government bodies contain maps of functional zones8.
It is also important to note that none of the plans grants the right to construct. The plans contain explanations regarding procedural matters, but other legal documents are used for making decisions on granting planning approvals, for example, government circulars. Such a system provides applicants with significant freedom but does not guarantee certainty. As a result, the large number of decisions made at the local level leads to their being appealed to the State Secretary
state9.
The provided provision is fundamentally important because in Russia, compliance of the project documentation with the requirements of the land use plan for the plot (which, in essence, represents a consolidated extract from several sources of open information, including the rules of land use and development (hereinafter - Rules) in terms of permitted uses, maximum parameters of real estate use, etc.) or the territory development project and cadastral survey project
territories (in the case of construction, reconstruction of linear objects), the applicant is issued a construction permit (Part 1 Article 51 of the Civil Code of the Russian Federation).
In the United Kingdom, the planning administration of the county must confirm compliance of the local plan (development plan document) with the structure plan (locality plan document). Discrepancies in this matter should be resolved by the Minister for the Environment, who may require a revision (amendment) of the prepared local plan. However, if non-compliance cannot (or for any reason is not possible) be rectified, then the local plan enters into legal force, which in this case turns out to be higher than the force
structural plan. This provision was established by the Housing and Planning Act of 1986. The Minister of the Environment is not directly responsible for approving local plans; however, copies of these documents must be submitted to him. In addition, the minister has the authority at his discretion to request any particular local plan for special consideration. In this case, the inspector, appointed by the minister, prepares a corresponding [report](/enc/7896/ "Definition of the term 'Report' in the legal
encyclopedias)
The local administration, having reviewed the report, may make corrections recommended by the inspector or reject them. Any arising disagreements should be regulated by the minister of state control (see: Wade H.W.R. Administrative Law. P. 183)10.
A.V. Krasheninnikov notes that the main requirement of legislation is that any construction must obtain a planning permit (land allocation). Applications for land allocation are considered based on Development Plans, which define the urban development strategy.
for each parcel of urban territory. Since 1986, the idea of "flexible planning" has been implemented in practice, according to which a planning permission (planning permission) – allocation of a land parcel – can provide for not just one but several types of use11.
The state power in Germany has a three-tier structure: Bund (federal level), Länder (state level), and Staedte und Gemeinden (municipal level). In Germany there are 16 Länder, three of which have the status of Stadtstaaten (city-states](/enc/9280/ "Definition of the term 'Länder' in the legal encyclopedia")). These are Berlin, Bremen, and Hamburg12.
As noted by Steven Butler, "at the level of local authorities, there are two types of land use plans: Flaechennutzungplan (preliminary) and Bebauungsplan (legal). When preparing both types of local plans, one month is allocated for public discussion. Flaechennutzungplan is prepared for the entire territory of the municipality and cannot contradict higher-level plans. In the [territory](/enc/32236/ "Definition of 'territory' in the legal encyclopedia) of the municipality, it is divided into categories of land use. It serves as a basis for preparing Bebauungsplan, is subject to implementation at the municipal level, and is not mandatory for private parties."
O.E. Medvedeva emphasizes that in the FRG (Federal Republic of Germany) federal law obliges municipalities to develop land use plans for specific parts of municipal territories, which establish parameters of development (type, method of construction, land areas allocated for streets, schools, kindergartens and others, in total 26 criteria).
Almost all land plots within the territory of Germany are accounted for in the land use plan of the respective municipality and assigned to one of the possible categories. This also applies to agricultural lands, forests, wastelands, etc. If any land plot is reflected in the land use plan as being located on territory designated for construction, this does not yet grant the owner of the land plot the right to develop it. Such a right arises only after the municipality prepares a development plan, which provides detailed
regulates the permissible characteristics of future development. Based on this, landowner may submit an application for construction, which will be approved if it complies with legislative provisions in the field of construction and planning14.
In Germany, the enforcement of land regulation laws ["land"](https://enc/9280/ "Definition of 'Land' in the legal encyclopedia) is quite strict on one ["side"](https://enc/31788/ "Definition of 'Parties' in the legal encyclopedia), while on the other ["side"](https://enc/31788/ "Definition of 'Parties' in the legal encyclopedia) allows for applying established directives based on common sense, guided by general value-based criteria formulated by society. For example, many "old" territories such as historical city centers are not
there is a development plan. In this case construction is permitted without a development plan, but the construction project must meet the requirements of the land use plan and correspond to the character of the territory in terms of the type of development and future usage. Compliance with these requirements is established during the inspection when issuing a construction permit.
In its most general form, this rule is formulated in the government decree of the state of Saxony, where it is stated that «the principles of land development planning relating to directive planning of construction have an advisory nature and should be included in decisions on directive planning of construction as material for consideration. These objectives and principles of land planning are intended to increase the inflow of investments by outlining the field of decision-making regarding the implementation of investment projects and thereby ensuring [reliability](/enc/32602/ "Definition
the concept of 'reliability' in the legal encyclopedia") planning. At the same time, consideration must be given to the need for long-term preservation of jobs»15.
An important feature of local self-government in the USA is its organizational and functional independence16. When considering the peculiarities of land use zoning in the US, it should be noted that most states have two levels of local authorities: cities and counties. Counties cover the entire territory of the state, but within cities they practically have no authority to regulate land use17.
The first zoning regulations in the United States were used by the wealthy to exclude the poor from living nearby. In the 1880s, laws aimed at segregating the Chinese population were adopted in San Francisco. When open segregation was declared unconstitutional, the city enacted a zoning law prohibiting the opening of laundries in certain areas. The zoning law did not conflict with the Constitution because it served to protect public welfare by restricting undesirable use of land (for laundries) in some residential areas. Since
Most laundries in the city were owned by Chinese people, zoning laws became a legal tool for segregation. The rapid rise in unemployment among clerical workers and garment factory workers in New York in 1916 led to an increase in the number of low-paid female workers on the streets of Manhattan. Shop owners on wealthy Fifth Avenue feared that the appearance of a large number of poor women would negatively affect their business, and proposed adopting zoning laws that limited the size and height of buildings. Zoning laws limited the height of office and garment factory buildings, thereby reducing the [quantity](/enc/6291/ "Definition of 'Quantity' in...
from the "legal encyclopedia" clerks and seamstresses walking along Fifth Avenue. The zoning law was adopted as constitutional, because it protected public welfare, limiting the inconveniences caused by tall buildings (blocking light, restricting visibility)18.
The question of whether zoning violates the United States Constitution was considered by the United States Supreme Court in the case "Euclid v. Ambler Realty" (272 U.S. 365 (1926)). The Supreme Court held that general zoning principles based on the state's "police powers" are within the authority of the state legislature. As a result, by 1931 all states had adopted laws permitting municipal zoning, and it is estimated that the majority of urban populations live in zoned cities19.
Describing the US zoning system, Arthur O'Sullivan notes that theoretically, the purpose of zoning is to promote improvement in health, increase safety, and enhance the well-being of the population. The main means of achieving these goals is the separation of incompatible land use directions. Author also emphasizes that "there are many types of zoning, each of which pursues at least one goal. The purpose of nuisance zoning – to separate from each other incompatible [types](/enc/31972/ "Definition of the term 'Types' in
"legal encyclopedia") of land use. In cities, financial zoning (financial zoning) is also applied, which allows excluding households that typically do not contribute to the maintenance of local government. Design zoning (design zoning) is a form of macro-architecture: urban architectural departments place various types of activities so as to more efficiently utilize the city's infrastructure"20.
According to V.L. Glazychev, «... zoning – zoning laws that determined the life of American cities for a century ahead, was borrowed from Germany. In 1916 New York introduced zoning rules based on usage and height simultaneously with the law requiring mandatory setbacks of building floors from the red line when constructing skyscrapers ...»21.
Steven Butler analyzing legislation on US zoning, notes that in most large cities there are general plans and zoning laws. In some states, general plans and zoning laws must be present in all cities. Sometimes zoning laws are called zoning codes (zoning code), zoning ordinances (zoning ordinance), zoning statutes (zoning statute), zoning regulations (zoning regulations). These terms have one meaning - a legal code of norms and
procedures for the issuance of approvals for construction projects22.
It should be emphasized that author does not provide an exhaustive list of types of territorial zoning. In Russia, such a closed list also does not exist, likely due to the lack of justification for its formation. At present time, the most regulated types of territorial zoning are urban planning zoning and [functional zoning](/enc/8236/ "Definition of the term 'Functional Zoning' in the legal
(encyclopedias) within the framework of the territorial planning institute.
In addition, in the United States there exist codified statutes dealing with zoning issues. In Russia, there are no separate codified statutes devoted to territorial zoning matters. Norms providing for the regulation of public relations related to territorial zoning appear in laws and other normative legal acts of various sectoral affiliations. For example, legislation on urban development activities provides for urban planning23 and [functional zoning](/enc/8236/ "Definition of the term 'Functional
“zoning” in the legal encyclopedia"24. The Federal Law “On the Protection of Lake Baikal” provides for ecological zoning of the Baikal Natural Territory25.
Steven Butler, analyzing the US zoning system, notes that in general, comprehensive plans are not legal documents mandatory for landowners and local authorities, as they are advisory in nature. In most states, primarily those where enabling laws were enacted long ago, there exists only a general link between the comprehensive plan and zoning law.
In some states where such laws have been recently adopted - California, Florida, Washington - zoning law must conform to the general plan. Thus, although the general plan is not a legal document, zoning law cannot sanction urban development activity, which contradicts provisions of the general plan26.
It should be noted that in the legislation of the Russian Federation, there is a problem regarding the relationship between functional zoning in territorial planning documents and land use and construction zoning in land use and development rules27. Within the scope of this study, we have attempted to propose our own vision for resolving the corresponding issue, which is presented in paragraph 1 of chapter III of this dissertation.
As noted by V.L. Glazychev, in 1923 the United States adopted the Law on the State Standard of Zoning. The 1927 amendment established the general plan as a law mandatory for implementation. However, the development of the general plan was defined as recommended but not mandatory, resulting in most city planning commissions failing to receive funding for developing the master plan. In practice, planning activity and zoning became disconnected both legislatively and
In fact, which largely predetermined the further fate of American urban planning28.
Describing the zoning system in the United States, M.Yu. Galatin notes that depending on the land use designation within the boundaries of zones, three main types of zoning can be identified: urban, agricultural, and ecological.
Urban zoning regulates use of land for industrial, commercial, and residential purposes (list of objectives in legislation is not exhaustive).
Agricultural zoning has not developed as extensively as urban zoning, since land use conflicts in rural areas are significantly less frequent. Furthermore, not all states' enabling laws grant local governments in rural areas authority over zoning, leading to uncontrolled misuse of valuable agricultural lands. The techniques for delineating agricultural zones, their quantity and legal regimes in the United States are diverse. For example, in the Department of Commerce's instructions on developing a zoning ordinance,
In rural areas, local self-government bodies are proposed to allocate four types of zones taking into account data from soil, topographic, and land surveying surveys.
In ecological zones, types of land use and execution of works incompatible with the interests of environmental protection are prohibited. Lands subject to ecological zoning include wetlands and waterlogged lands, coastal strips, erosion-prone areas, lands of river, lake, and other water bodies' shores, which have significance from the perspective of wildlife conservation, aesthetic qualities of the landscape, recreation for the population, etc.29.
The peculiarities of territorial zoning in the United Kingdom, Germany, and the United States are determined by a multitude of factors under whose influence legislation and law enforcement practice develop. Among such factors, one can note the characteristics of the administrative-territorial structure of the state, form of government, public legal awareness, historical and cultural peculiarities, and other features. The above emphasizes the special role
continuity of the chosen course of legislative development in each country as a factor ensuring the stability of land legal relations.
Okay.
- Bogolubov S.A. Environmental Law: textbook for higher education institutions. Moscow, 2001. P. 254. ↩
- Trutnev E.K., Bandorin L.E. Commentary on the Urban Planning Code of the Russian Federation. Moscow, 2010. ↩
- Decentralization of Management in Foreign States / Ed. by A.N. Pilipenko. Moscow, 2009. P. 84. ↩
- Butler Steven. Ibid. P. 19. ↩
- Spatial Planning Systems in Western Europe // Gerhard Larsson Royal Institute of Technology. Stockholm, Sweden. 2006. P. 256. ↩
- Planning Law and Practice – 2nd edn / Blackhall, J Cameron. London, Sydney. 2000. P. 24. ↩
- Butler Steven. Ibid. P. 19 ↩
- The functional zones map contains: 1) territorial planning schemes
municipal district (paragraph 4 of part 1 Article 19 of the Russian Urban Planning Code (GPK RF)); 2) settlement general plan (paragraph 4 of part 3 Article 23 of the Russian Urban Planning Code (GPK RF)); 3) city district general plan (paragraph 4 of part 3 [Article 23 of the Russian Urban Planning Code (GPK RF)](https://alexeyborisov.ru/law/grkrf/st23/ "Article 23 of the Russian Urban Planning Code (GPK RF))). ↩
9. Butler Stephen. Op. cit. P. 19. ↩
10. Cited in: Urban Planning Regulation: Foundations of regulation of urban planning activities under conditions of real estate market formation. Ed. by the author's collective E.K. Trutnev. Moscow, 2008. Pp. 252–253. ↩
11. Krasheninnikov A.V.
Urban Development of Residential Construction: research on the experience of Western countries. Moscow, 2005. P. 45. ↩
12. Butler Steven. Ibid. P. 22. ↩
13. Butler Steven. Ibid. P. 23. ↩
14. Real Estate Valuation. Gribovsky S.V., Ivanova E.N., Lvov D.S., Medvedeva O.E. Moscow, 2003. P. 407-408. ↩
15. Real Estate Valuation. Gribovsky S.V., Ivanova E.N., Lvov D.S., Medvedeva O.E. Moscow, 2003. P. 408. ↩
16. Decentralization of Management in Foreign States / Ed. by A.N. Pilipenko. Moscow, 2009. P. 138. ↩
17. Butler Steven. Ibid. P. 25. ↩
18. Arthur O'Sullivan. Economics of the City.
Transl. from English by INFRA-M, Moscow, 2002. P. 298. ↩
19. Busher G., Green M. Development of Land and Land Use Legislation in the State of Massachusetts, USA // Law and Politics. 2006. No. 11. ↩
20. Arthur O'Sullivan. Urban Economics. Transl. from English by INFRA-M. Moscow, 2002. P. 298. ↩
21. Glazychev V.L. Urbanism. Part 1. Moscow, 2008. P. 276-277. ↩
22. Butler Steven. Op. cit. P. 25. ↩
23. Urban Planning Zoning is discussed in detail in paragraph 2 of chapter II of this dissertation. ↩
24. Functional zoning is discussed in detail in paragraph 3 of chapter II of this
dissertations. ↩
25. Ecological zoning is discussed in detail in paragraph 1 of Chapter II of this dissertation. ↩
26. Butler, Steven. Ibid., p. 25 ↩
27. See, for example, Commentary on the Urban Planning Code of the Russian Federation (Article-by-Article) / Ed. S.A. Bogolyubov. Moscow, 2012; Trutnev E.K., Bandorin L.E. Commentary on the Urban Planning Code of the Russian Federation. Moscow, 2010. ↩
28. Glazychev V.L. Urbanism. Part 1. Moscow, 2008. Pp. 276–277. ↩
29. Galatin M.Yu. Zoning – a method of legal regulation of land relations in the USA // Law. No. 6. 1983. Pp. 86–90. ↩