Features of Territorial Zoning in the United Kingdom, Germany, and the United States of America

As noted by S.A. Bogolyubov, the necessity to intensify efforts in environmental protection, as well as our country's entry into the European, universal human community imply: taking into account, analyzing and using key legal achievements developed by world civilization; unbiased comparison of these achievements with traditional forms of land use that have proven themselves in our country; searching for and developing ways to overcome difficulties associated with the psychological, political, economic, cultural condition and level of population, as well as with the absence of a ready-made apparatus and mechanism for implementation¹. Thus, it seems reasonable to consider the characteristics of legal regulation of territorial zoning in foreign countries.

In the literature, it is noted that hypothetically there are two regulation technologies - a one-stage technology and a two-stage technology. A one-stage technology refers to when the general plan contains "everything" - both functional zoning with functional zones, and urban planning zoning with urban planning regulations. A two-stage technology refers to when there is a general plan with functional zoning and there is a normative legal act - land use and development rules with urban planning regulations². For the purposes of analysis, countries were selected in which, just like in Russia, the two-stage technology is also applied.

The British government pays significant attention to improving local democracy. In line with the general trend towards decentralizing state power while simultaneously maintaining a strong role for the center, measures to develop local self-government have taken on particular importance³.

The territorial organisation of metropolitan areas in England provides for 33 municipal borough councils in London and 36 municipal borough councils in the other six metropolitan areas. In addition, there are 39 counties without city status, each with a county council. Within these 39 counties there are 296 district councils⁴.

The main legislative instruments relating to territorial planning in the United Kingdom are: The Town and Country Planning Act 1990; The Planning (Historic Buildings and Conservation Areas) Act 1990; The Planning (Hazardous Substances) Act 1990; The Planning and Compensation Act 1991⁵.

As Stephen Butler notes, in England matters of urban development are the responsibility of the Department for Environment at the Ministry of Environment. At the local level in England, a system of two-part development plans is used. The first part is the "structure plan," which is developed as a mandatory document for each county. The second part is the "local plan," which must now be prepared compulsorily for all areas of England.

Cameron Blackhall points out that county authorities are responsible for preparing the structure plan, as well as the minerals plan and the waste disposal plan for the entire county area. Local plans should be prepared by each district and represent a specification of the structure plans. The structure plan is adopted by the county council, and the local plan is adopted by the district council⁶.

The structural plan is not a land use plan, but a strategic plan in which the development strategy is outlined with or without separate cartographic materials. The local plan also contains a detailed exposition of the development strategy and is usually accompanied by a map ("proposal map"). 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 construction. The plans provide explanations regarding procedural matters, but other legal documents, such as government circulars, are used for making decisions on issuing planning approvals. Such a system provides applicants with significant freedom, but does not guarantee certainty. As a result, a large number of decisions made at the local level lead to their being appealed to the state secretary of the federal state⁹.

The provision cited is of fundamental importance, since in Russia, if the project documentation meets the requirements of the land use and development plan for the land plot (which, in essence, represents a consolidated extract from several sources of open information, including the rules of land use and development (hereinafter - Rules) regarding permitted uses, maximum parameters for the use of real estate objects, etc.), or the territory planning project and the cadastral survey project (in the case of construction or reconstruction of linear facilities), the applicant is issued a construction permit (part 1 of article 51 of the Russian Urban Planning Code).

In the United Kingdom, the county planning authority must confirm that the local plan document conforms to the development plan document (the structural plan). Discrepancies on this matter should be resolved by the Environment Minister, who may require a revision (adjustment) of the prepared local plan. However, if the discrepancy cannot (or for any reason is impossible) be eliminated, then the local plan comes into legal force, which in this case is higher than the force of the structural plan. This provision was established by the Housing and Planning Act of 1986. The Environment Minister does not directly oversee the approval of local plans, however copies of these documents must be sent to him, moreover, the minister has the power at his discretion to request any particular local plan for special consideration. In this case, an inspector appointed by the minister prepares a corresponding report.

The local administration, having familiarized itself with the report, may make the recommended corrections by the inspector or reject them. Any arising disagreements should be resolved by the minister for state control (see: Wade H.W.R. Administrative Law. P. 183)¹⁰.

A.V. Krasheninnikov notes that the main requirement of legislation is that a planning permit (allocation) must be obtained for any construction. Applications for allocation are considered on the basis of Development Plans, which define the urban development strategy for each area of the city territory. Since 1986, the idea of "flexible planning" has been put into practice, according to which a planning permission (planning permission) – land allocation – may provide not one but several types of use¹¹.

The state power in Germany has a three-tier structure: Bund (federal level), Laender (level of states) and Staedte und Gemeinden (municipal level). In Germany there are 16 Laender, three of which have the status of Stadtstaaten (city-states). These are Berlin, Bremen and Hamburg¹².

As Stephen Butler notes, "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 their discussion by the population. The Flaechennutzungplan is prepared for the entire territory of the municipality and cannot contradict plans at a higher level. In the plan, the territory of the municipality is divided into land-use categories. It serves as a basis for the preparation of Bebauungsplan, which is to be implemented at the municipal level and is not mandatory for private landowners."¹³.

O.E. Medvedeva emphasizes that in the Federal Republic of Germany, federal law obliges municipalities to develop land use plans for specific areas within municipal territories, which establish development characteristics (type, method of construction, land areas allocated for streets, schools, kindergartens, etc., a total of 26 criteria).

Almost all land parcels within the territory of Germany are recorded 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 a particular land parcel is reflected in the land use plan as being located on an area designated for construction, this does not yet grant the owner of that land parcel the right to develop it. Such a right arises only after the municipality has prepared a development plan, which detailed regulations govern the permissible characteristics of future development. Based on this, the owner of the land parcel may submit a building application, which will be approved if it complies with legislative provisions in the field of construction and planning¹⁴.

In Germany, the enforcement of land use regulations is on one hand quite strict, but on the other hand allows for applying established directives based on common sense and guided by general value criteria formulated by society. For example, many "old" built-up areas, such as historical city centers, do not have development plans. In such cases, construction is permitted without a development plan, but the building project must meet the requirements of the land use plan and correspond to the character of the area in terms of type of development and future usage. Compliance with these requirements is determined during the inspection when issuing a building permit.

In the most general terms, this rule is formulated in a government decree of Saxony, where it is stated that "the principles of land development planning relating to directive construction planning have a recommendatory character and should be included in decisions on directive construction planning as material for consideration. These goals and principles of land planning are intended to increase the inflow of investments by outlining the field for decision-making regarding the implementation of investment projects, thereby ensuring the reliability of planning. At the same time, the need for long-term preservation of jobs should be taken into account"¹⁵.

An important feature of local self-government in the United States is its organizational and functional independence¹⁶. When considering the characteristics of land use zoning in the United States, it should be noted that most states have two levels of local government: cities and counties. Counties cover the entire territory of the state, but within cities they practically have no authority over land use regulation¹⁷.

The first zoning regulations in the United States were used by the wealthy to exclude the poor from living nearby. In the 1880s, laws were enacted in San Francisco with the aim of separating the Chinese population there. When overt segregation was declared unconstitutional, the city adopted a zoning law that prohibited the establishment of laundries in certain areas. The zoning law did not conflict with the Constitution because it was framed as protecting public welfare by prohibiting undesirable land use (laundry operations) in some residential areas. Since most of the laundries in the city were run by Chinese people, the zoning law became a legal instrument for segregation. The rapid rise in unemployment among clerical workers and factory garment workers in New York in 1916 led to an increase in low-paid female workers on the streets of Manhattan. Shop owners along wealthy Fifth Avenue feared that the presence of large numbers of poor women would negatively affect their business, and proposed the adoption of zoning laws that limited building size and height. The zoning law limited the height of office buildings and garment factories, thereby reducing the number of clerks and seamstresses walking along Fifth Avenue. The zoning law was adopted as constitutional because it protected the public good by 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 Supreme Court of the United States in the case "Euclid v. Amber Realty" (272 U.S. 365 (1926)). The Supreme Court of the United States ruled that general zoning principles based on the state's "police powers" fall within the authority of state legislative assemblies. As a result, by 1931 all states had adopted laws allowing municipal zoning, and it is estimated that most 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. The author also emphasizes that "there are many types of zoning, each of which pursues at least one goal." The purpose of nuisance zoning is to separate incompatible land uses from each other. Financial zoning is also used in cities, which can be used to exclude households that typically do not contribute their share to the maintenance of local government. Design zoning is a kind of macro-architecture: urban architectural departments place different types of activities in such a way as to more effectively use the city's infrastructure»²⁰.

According to V.L. Glazychev, "… zoning – the laws of zoning that determined the life of American cities for a century ahead were borrowed from Germany. In 1916 New York introduced a zoning rule by usage and heights at the same time as the law on mandatory setbacks of building floors from the red line when constructing skyscrapers …"²¹.

Steven Butler, analyzing U.S. zoning legislation, points out 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 (zonal code), zoning ordinances (ordinance on zoning), zoning statutes (zonal statute), zoning regulations (zonal regulations). These terms have one meaning – a legal code of norms and procedures for granting approvals for construction projects²².

It should be emphasized that the author does not provide an exhaustive list of types of land zoning. In Russia, there is also no closed list of such types, likely due to the unfounded nature of its formation. At present, the most regulated types of land zoning are urban planning zoning and functional zoning within the framework of the institution of territorial planning.

In addition, in the United States there are codified acts dealing with zoning issues. In Russia, there are no separate codified acts devoted to territorial zoning issues. Norms providing for the regulation of public relations related to territorial zoning can be found in laws and other normative legal acts of various sectoral affiliations. For example, legislation on urban planning provides for land use²³and functional zoning²⁴. 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 binding on landowners and local authorities, as they have a recommendatory nature. In most states, especially where enabling laws were adopted long ago, there is only a general connection between the comprehensive plan and the zoning law.

In some states, where such laws were recently adopted - in California, Florida, Washington - the zoning law must conform to the comprehensive plan. Thus, although the comprehensive plan is not a legal document, the zoning law cannot sanction land use activities that contradict the provisions of the comprehensive plan²⁶.

It should be noted that in the legislation of the Russian Federation there is a problem of 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 tried to offer our own vision of solving the corresponding problem, 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 Standard City Planning Law. The 1927 amendment established the general plan as a legal document that was mandatory to implement. However, the development of the general plan was defined as recommended but not mandatory, which resulted in most city planning commissions failing to receive funding for the preparation of the general plan. In practice, planning activities and zoning became separated both legislatively and factually, which largely determined the further course of American urban planning²⁸.

Describing the zoning system in the United States, M.Yu. Galatin notes that depending on the land's intended use within the boundaries of zones, three main types of zoning can be identified: urban, agricultural, and ecological.

Urban zoning regulates the use of land for industrial, commercial, and residential purposes (the list of objectives in legislation is not exhaustive).

Agricultural zoning has not developed to the same extent as urban zoning, since in rural areas the conflict between land uses is much less. Moreover, not all states empower local governments in rural areas with zoning authorities through enabling laws, which leads to uncontrolled encroachment on valuable agricultural lands. The techniques for designating agricultural zones, their number and legal regimes in the United States are diverse. For example, in the Department of Commerce guidelines for developing an ordinance on rural land use zoning, local governments are recommended to designate four types of zones taking into account data from soil, topographic, and cadastral surveys.

In ecological zones, types of land use and activities incompatible with the interests of environmental protection are prohibited. Lands subject to ecological zoning include wetlands, moist lands, shore strips, erosion-prone areas, river, lake, and other water body shores that are of interest in terms of wildlife conservation, landscape aesthetics, public recreation, and others²⁹.

The peculiarities of territorial zoning in the United Kingdom, Germany, and the United States are determined by a multitude of factors that influence the formation and development of legislation and law enforcement practices. Among these factors can be noted the characteristics of the administrative-territorial structure of the state, form of government, legal awareness of the population, historical and cultural features, and other aspects. The above emphasizes the special role of continuity in the chosen course of legislative development in each country as a factor ensuring the stability of land-related legal relations.

2010.

2009. P. 84.

2003. Pp. 407–408.

2003. P. 408.

2009. P. 138.

298.

298.