Legal regulation of urban planning zoning
As noted by S.A. Bogolyubov, cities and populated areas are the main places of residence for Russian citizens, who are called upon to create a favorable environment and other conditions necessary for the prosperity of quality life. The set of means ensuring a decent life and free development of a person is provided in the institutions and norms of urban planning and environmental legislation1. At the same time, Yu.G. Zharikov emphasizes that construction is far from being harmless economic activity.
"activity" in the legal encyclopedia," both for the natural environment surrounding the construction site and for the cultural landscape of the city, its aesthetics2. In this context, ensuring a favorable state of the environment during urban development activities acquires particular significance.
In scientific literature, emphasis is placed on the important role of urban planning zoning in regulating construction activities. According to N.V. Kichigin, urban planning zoning should become the most important and effective tool for regulating construction activities and land use within the territories of municipal entities, enabling municipal entities to conduct independent municipal policy in the areas of land use and development3.
Then, according to E.K. Trutnev's opinion, under a market economy, in conditions of the real estate market, there cannot be urban planning zoning establishing legally significant urban development regulations through municipal normative legal acts—Rules of Land Use and Development4.
Urban planning zoning is most detailed among all types of territorial zoning considered within the scope of this study, being regulated in detail under current Russian legislation. Urban planning zoning and individual elements of urban planning zoning are frequently discussed in scientific literature5. There also exists a significant [number](/enc/6291/ "Definition of the term 'Number' in the legal
encyclopedias)" dissertation research, in which urban zoning is discussed in detail6.
According to A.P. Anisimov's opinion, the institution of urban planning zoning occupies a special place in the mechanism of legal regulation. It contains criteria for the lawfulness of behavior of subjects of land relations, since it specifies the characteristics of administrative (and not only) offenses recorded in blanket legal norms, serves as a criterion of lawfulness (illegality) of the behavior of subjects of land relations. [State](/enc/21111/ "Definition of the term «State» in
such institutions as the right to a favorable living environment, liability for land violations (unauthorized construction) and others, depends on the use of the land plot in accordance with urban planning regulations established for each territorial zone7.
N.A. Andrianov notes that the main value of the territorial zoning system for settlements lies in establishing "transparency" in the construction process, when both potential developers and the population become clear about how a particular land plot and real estate objects located on it can be used. This allows practically complete exclusion of dependence of developers and the population of the territory on the subjective discretion of officials of the authorities
of local self-government when determining the permitted use of a land plot8.
Previously in force Urban Planning Code of the Russian Federation dated 07.05.1998 № 73-ФЗ (hereinafter – Urban Planning Code of Russia 1998)9 distinguished zoning10 and legal zoning11. According to A.A. Vysockovsky, legal zoning is an ideology and technology of urban planning regulation intended for market economy, aimed at democratic process achieving balance of interests of different groups12.
However, during the preparation of the new Land Code of the Russian Federation doubts arose regarding the correctness of the term 'legal zoning' in the sense that using this term may lead to perceiving any other type of zoning (for example, general plan zoning) as non-legal13.
In the current Russian Urban Planning Code (ГрК РФ), the term "urban planning zoning" term is used14. According to N.V. Kichigin, urban planning legislation provides such a universal mechanism mechanism for regulating various interests as urban planning or territorial zoning15. Whereas L.E. Bandorin views urban planning zoning as the primary method for determining permissible use16.
The content of the concept of "urban planning zoning" allows one to conclude that it includes two elements (list closed): 1) definition of territorial zones and 2) establishment of urban planning regulations. Moreover, use of the coordinating conjunction "and" means that for this method of defining the legal regime of land both elements are necessarily required. In other words, urban planning zoning is not merely the establishment of territorial zones or merely the establishment
of urban planning regulations, otherwise a coordinating conjunction "or" would be used in the law.
The result of urban planning zoning is the preparation of rules of land use and construction17. According to N.V. Kichigin, although the main task of rules of land use and construction is to regulate development, they also contain significant potential for nature conservation18. Pursuant to paragraph 2 of Article 30 of the Urban Planning Code of the Russian Federation, rules of land use and construction include: 1) procedures for their application and amendments to these rules
encyclopedias"; 2) urban planning zoning map19; 3) urban planning regulations.
According to data from the Ministry of Regional Development of Russia, by the end of 2013, adopted: 87.6% of land use and development rules for urban districts; 79.2% of land use and development rules for urban settlements; 62.7% of land use and development rules for rural settlements20.
Preparation of the land use planning project (PZZ) is carried out, among other things, taking into account the results of public hearings and proposals from interested parties (paragraph 3 Article 31 of the Land Code of the Russian Federation). At the same time, A.P. Anisimov considers public hearings on land use planning projects and general plans as the most effective form of public participation in making ecologically significant decisions21.
Urban Planning Regulation includes three elements: 1) permitted types of land use established within the boundaries of the corresponding territorial zone, including everything located above and below the surface of land plots and used during their construction and subsequent operation of capital construction objects; 2) limiting (minimum and/or maximum) sizes of land plots and limiting parameters of permitted construction,
reconstruction of capital construction objects; 3) limitations on the use of land plots and capital construction objects (paragraph 6 of article 1 of the Civil Code of the Russian Federation of the Civil Code of the Russian Federation).
As noted by E.K. Trutnev and L.E. Bandorin, the first two components are, so to speak, the positive part of the urban planning regulation — "what is allowed." The third component is the negative part — "what is prohibited." Thus, the urban planning regulation can simultaneously contain instructions on both what is allowed and what is prohibited.
The positive part of the urban planning regulation, "what is allowed," are authorized to establish [local self-government bodies](/enc/29989/ "Definition of the term 'Local Self-Government Bodies' in the legal encyclopedia) in land use and construction rules. "What is allowed" is established taking into account "what is not allowed."
The negative part of the urban planning regulations, "what is not allowed," local self-government bodies are not entitled to establish, but must comply with and take into account. "What is not allowed" is established in accordance with federal legislation through zones with special land use conditions (see paragraph 4 Article 1 of the Federal Urban Planning Code (GK RF)). Zones with special land use conditions are recorded in documents
territorial planning (including in general plans) and must be reflected in the rules of land use and development22.
According to N.V. Kichigin, the Federal Law on Land (GK RF), firstly, extends the mechanism of permitted use not only to land plots but also to capital construction objects (real estate); secondly, establishes a classification of types of permitted use for land plots and capital construction objects23.
At the same time, scientific literature emphasizes the special importance of urban planning regulations in regulating social relations. For example, A.V. Chereditnov justified the position, according to which, an optimal combination of permissions and restrictions in urban planning regulations will allow ensuring the balance of public and private interests24.
In legislation, provisions are provided provision regarding the possibility of landowners and owners of capital construction objects to independently choose any type of permitted use specified by zoning of territories (paragraph 2 of point 2 Article 7 of the Land Code of the Russian Federation). According to N.V. Kichigin, the above-mentioned provision of legislation should not be considered as an absolute permission to act
only in accordance with the provisions of the urban planning regulation. The provisions of the urban planning regulation should be considered in conjunction with legislative acts of the Russian Federation, technical regulations, SanPiN requirements, and other mandatory requirements. Thus, even in an industrial area of a populated locality, it is not possible to locate an atomic power station without special studies and agreements25. L.E. Bandorin proposed a mechanism for implementing the right to choose any type of permitted use from the land uses provided by the zoning of territories26.
Problems related to determining the legal regime of land when approving land use and development rules are frequently encountered in judicial practice. As follows from the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 18, 2013 No. 136/13 in case No. A55-23145/2010, the limited liability company "G." (hereinafter - the company) filed an application with the Arbitration court of S. region against the Duma of the city district S. and the head of the city district S. requesting recognition of the decision of the Duma of the city district S. dated April 8, 2010 in part changing Zone C-1 to Zone R-2 (zone for parks, boulevards and
By the decision of the Arbitration Court of S. region dated 19.12.2011, the claims were satisfied. The Federal Arbitration Court of P. district by the ruling dated 29.03.2012 annulled the decision dated 19.12.2011 and referred the case for reconsideration to the Court of first instance. By the decision of the Arbitration Court of S. region dated 27.07.2012, the claims were satisfied. Federal
The Arbitration Court of District P, by the decision dated November 13, 2012, upheld the decision dated July 27, 2012.
As established by the courts and apparent from the case materials, the contested act introduced changes to the legal zoning map, including the modification of Zones Ж-3 and Ц-1 to Zone Р-2.
Revoking the decision of the Arbitration Court of S. region dated 27.07.2012 in case No. A55-23145/2010 and the ruling of the Federal Arbitration Court of P. district dated 13.11.2012 in the same case, the Presidium of the Supreme Arbitration Court noted the following.
Federal legislation limits the owner's right to use their land plot through construction and reconstruction of real estate objects located on the plot by the necessity of complying with urban planning regulations. The specific scope of such limitations is established in accordance with urban planning legislation rules of land use and construction.
The task of municipal authorities when developing land use and construction rules consists not in ensuring the priority of landowners' rights over damage to other interests, but in coordinating these rights and interests, in establishing a reasonable and fair balance between them.
The courts' conclusion that the adoption of changes in Rules creates obstacles for society in continuing the use of parking lots is erroneous. Acknowledging the challenged act as invalid, the courts failed to consider that this provision explicitly provides for the possibility of continuing the previous use of land plots.
Courts also found that adopting the challenged act after the owner received the land plot's State Development Plan (ГПЗУ) constitutes a violation of his rights, as it deprives him of the possibility to further use the land plots for constructing real estate objects. However, taking into account that the issuance of the challenged act does not contradict the provisions of the Civil Code of the Russian Federation and the Land Code of the Russian Federation, the fact that this act restricts the rights of the land plot owner cannot serve as a basis for declaring it invalid.
At the same time, in this case, the extent of limitation on the society's property rights resulting from amendments to Rules has significantly increased compared to previously existing limitations. In connection with this, land plot owners are not deprived of the right to assert claims under paragraph 7 of Article 23 of the Land Code of the Russian Federation, including claims for expropriation of land plots from them.
Article 38 of the Land Code of the Russian Federation defines the content of maximum sizes of land plots and maximum parameters of permitted construction and reconstruction of capital construction objects27. In the opinion of N.V. Kichigin, establishing such parameters and sizes can become an effective tool for urban planning and land policy of municipal formations, will allow more efficient use of land plots and capital construction objects located on them, and reduce administrative costs in conducting entrepreneurial activities in the construction sector28.
It is also important to define the object of urban planning zoning. According to O.P. Kudinova, «territorial zones are established as a result of conducting zoning within the boundaries of urban development»29. In the given context, it is necessary to take into account that the Urban Planning Code of the Russian Federation establishes an exhaustive list of lands and land plots for which urban planning regulations are not established [urban planning regulation](/enc/24845/ "Definition of the term
«Urban Planning Regulation» in the legal encyclopedia")30.
According to O.I. Krassov, in relation to lands for which urban planning regulations are not established (urban zoning is not conducted), apply term «permitted use
Since establishing an urban development regulation is one of the inseparable elements of urban planning zoning, the absence of an urban development regulation for a specific land category implies impossibility of implementing urban planning zoning with respect to territories within the boundaries of the corresponding land category. It is also correct to state the reverse, that urban planning zoning may be implemented with respect to territories not
Taking into account the above, we consider urban planning zoning to be a method for determining the legal regime of territorial zones. The legal regime of territorial zones is established from the moment the regulatory legal act on the approval of land use and development rules comes into force. Legal regime of land is determined, among other things, based on their belonging to a specific territorial zone. Thus, urban planning zoning can be regarded as a method for determining the legal regime of land. At the same time, the legal regime
The legal regime of a territorial zone extends beyond the legal regime of lands within its boundaries, as urban planning zoning defines the legal regime not only for land plots but also for capital construction objects.
The content of the legal regime of territorial zones includes: 1) permitted types of land use established within the boundaries of the corresponding territorial zone types, including everything located above and below the surface of land plots and used during their development and subsequent operation of capital construction objects; 2) limiting (minimum and/or maximum) sizes of land plots and limiting parameters of permitted construction, reconstruction of capital construction objects; 3) restrictions on the use of land
plots and capital construction facilities.
Project of land use and development rules undergoes a procedure for public hearings, during which the population may influence the determination of the legal regime of territorial zones. Thus, public hearings on projects of land use and development rules are a form of public participation in determining the legal regime of lands.
On the urban planning zoning map, the boundaries of zones with special land use conditions and the boundaries of cultural heritage objects' territories are displayed in a mandatory manner. The boundaries of the aforementioned zones may be displayed on separate maps (part 5 of Article 30 of the Urban Planning Code of the Russian Federation). ---
- Bogolyubov S.A. The Relationship Between Urban Planning and Environmental Legislation // Ecological-Legal Issues of Sustainable Development of Settlements. Theses of Reports from a Scientific and Practical Conference / Edited by E.L. Minina. Moscow, 2013. P. 10. ↩
- Zharikov Y.G. The Necessity of Adhering to Environmental Requirements in Construction in Cities and Other Populated Areas // Ecological-Legal Issues of Sustainable Development of Settlements. Theses of Reports from a Scientific and Practical Conference / Edited by E.L. Minina. Moscow, 2013. P. 17. ↩
- Commentary on the Urban Planning Code of the Russian Federation (Article-by-Article) / Edited by S.A. Bogolyubov. Moscow, 2012. P. 156. ↩
Urban Regulation: Foundations of regulating urban development activities under conditions of the real estate market formation. Head of authoring team E.K. Trutnev. M., 2008. P. 160. ↩
5. See, for example, Andrianov N.A. On the procedure for developing documents of urban zoning for settlements // State Power and Local Self-Government. 2006. No. 1; Anisimov A.P., Zemlyakova G.L., Melnikov N.N. Zoning as a function of land fund management: theoretical issues // Modern Law. 2012. No. 8. P. 87 –
93; Anisimov A.P. On Some Issues of Urban Planning Zoning Territory of settlements at the current stage of legal reform // Legal Issues in Construction. 2004. No. 2; Commentary on the Russian Urban Planning Code (article-by-article) / Ed. by S.A. Bogolyubov. Moscow, 2012; Lisina N.L. Legislation of Moscow on urban planning and zoning of Territory // [Legislation](/enc/32121/ "Definition of the term
"Legislation" in the legal encyclopedia") and economy. 2002. No. 1; Mel'nikov N.N. Territorial Planning and urban planning zoning of artificial land plots // Russian Justice. 2011. No. 8. Pp. 9 – 13; Trutnev E.K., Bandorin L.E. Commentary on the Urban Planning Code of the Russian Federation. Moscow, 2010. ↩ 6. See, for example, Anisimov A.P. Theoretical Foundations of the Legal Regime of Land in Settlements in the Russian Federation: Abstract of dissertation ... Doctor of Juridical Sciences. Saratov, 2004; Bandorin L.E. Permitted [use](/enc/32013/ "Definition of the term «Use»
in the legal encyclopedia") of land plots: diss. ... cand. jurid. sci. Moscow, 2011; Vysokovsky A.A. Rules of Land Use and Construction: a guide to development. Experience in conducting legal zoning in Kyrgyzstan. Bishkek, 2005; Lisina N.L. Legal Regime of Lands of settlements: abstract of diss. ... cand. jurid. sci. Moscow, 2003; Legal Zoning of the City. Introduction to Issues of Urban Regulation in Market Conditions / Ed. by E.K. Trutnev. Moscow, 2002; Cherednikov A.V. Urban Planning Zoning as
means of ensuring public ecological and private interests: abstract of dissertation … candidate of legal sciences. M., 2012. ↩
7. Anisimov A.P. The New Urban Planning Code of the Russian Federation in the Context of Land Reform // Law and Economy. 2005. No. 3. ↩
8. Andrianov N.A. On the Procedure for Developing Documents of Territorial Zoning in Settlements // State Power and Local Self-Government. 2006. No. 1. ↩
9. Federal Law Collection (SZ RF). 1998. Art. 2069. ↩
10. Under the Urban Planning Code of the Russian Federation (GPK RF) 1998, zoning was understood as dividing territory into zones during urban planning development
territories and settlements with defined types of urban planning use, established zones, and restrictions on their use (article 1 of the Russian Federation Urban Planning Code (GK RF) 1998). ↩
11. Legal zoning - activity of local self-government bodies in the field of developing and implementing construction rules for territories of urban and rural settlements, other municipal formations (article 1 of the Russian Federation Urban Planning Code (GK RF) 1998). ↩
12. Vysokovsky A.A. [Land Use Rules and
land use and development: guidelines for development. Experience in legal zoning in Kyrgyzstan. Bishkek, 2005. P. 31. ↩
13. Legal zoning of the city. Introduction to issues of urban regulation in market conditions / Ed. by E.K. Trutnev. Moscow, 2002. P. 9. ↩
14. Urban planning zoning - zoning of territories of municipal formations for the purpose of defining territorial zones and establishing urban planning regulations (part 6 article 1 of the Urban Planning Code of the Russian Federation). ↩
15. Bogolyubov S.A., Kichigin N.V. Legislative regulation
activities of federal executive authorities in ensuring environmental safety. Moscow, 2007. p. 240. ↩ 16. Urban planning zoning as the primary method for determining permitted use ensures a balance between public interests at different levels and private interests, achieved through: 1) mandatory compliance of urban planning regulations with territorial planning documents of the Russian Federation, subjects of the Russian Federation, and municipal formations; 2) consideration of the results of public hearings in the development of urban planning regulations; 3) the right to choose any type of permitted use from
provided by zoning regulations without additional permits or coordination procedures. This constitutes a fundamental difference between urban planning zoning and other methods of determining permitted land use, which are implemented by authorized state authorities or local self-government bodies without coordination with other public authorities and without considering the interests of the population and interested parties (p. 101-103, 105-111, 127-133, 139-143, 145-152, 200) (Bandorin L.E. Permitted Land Use: Diss... Cand. Jurid. Sci. Moscow, 2011. P. 9.). ↩ 17. Land Use and Development Rules -
document of urban planning zoning, which is approved by normative legal acts of local self-government bodies, normative legal acts of state authorities of the subjects of the Russian Federation - federal cities of Moscow and Saint Petersburg, and in which territorial zones territorial zones, urban planning regulations, procedure for applying such a document and procedure for making changes to it are established (paragraph 8 Article 1 of the Russian Urban Planning Code).
↩ 18. Kichigin N.V. The Environmental Potential of Urban Planning Instruments // Ecological-Legal Issues of Sustainable Development of Settlements. Theses of Reports from the Scientific-Practical Conference / Edited by E.L. Minina. Moscow, 2013. p. 22. ↩ 19. On the urban planning zoning map, boundaries of territorial zones are established. The boundaries of territorial zones must comply with the requirement that each land plot belongs to only one territorial zone. Formation of a single land plot from several land plots located in different territorial zones is prohibited. Territorial Zones
contributes to preventing negative environmental impact when locating potentially hazardous industrial facilities. The most effective form of public participation in making such decisions is the involvement of citizens and their associations in discussions on general plans of municipal districts and settlements, as well as land use and development rules, since these types of urban planning documents determine the strategic parameters of construction for municipal territories, and it is optimal at this stage for local government authorities to pay attention to the inadmissibility of ignoring environmental considerations
interests of the population (Scientific-Practical Commentary on the Federal Law "On Environmental Protection" (Article-by-Article) / Ed. by A.P. Anisimov. Moscow, 2010.). ↩
22. Trutnev E.K., Bandorin L.E. Commentary on the Urban Planning Code of the Russian Federation. Moscow, 2010. ↩
23. Commentary on the Urban Planning Code of the Russian Federation (Article-by-Article) / Ed. S.A. Bogolyubov. Moscow, 2012. Pp. 197-198. ↩
24. According to A.V. Cherednikov, the implementation of the optimal combination of permissions embedded in the content of the urban planning regulation – the possibility of choosing permissible types of land use and parameters of permitted...
construction and reconstruction of capital construction objects and limitations – limits of land use and capital construction objects, maximum sizes of land plots, allows ensuring a balance between public ecological interests and the interests of owners, landowners, land users, and lessees of land plots (Cherednikov A.V. Urban Planning Zoning as a Means of Ensuring Public Ecological and Private Interests: Abstract of Dissertation … Candidate of Juridical Sciences. Moscow, 2012. P. 11.). ↩
25. Commentary on the Urban Development Code of the Russian Federation (Article-by-Article) / Ed. S.A. Bogolyubov. Moscow, 2012.
p. 198. ↩
26. Mechanism for implementing the right to choose any type of permitted use from those provided by zoning territories without additional permits or coordination procedures must consist in: 1) assigning local self-government bodies the obligation to make changes to data of the state real estate cadastre regarding changes in the permitted use of land plots
when adopting land use and development rules and making amendments thereto; 2) ensuring that permitted use is indicated in the cadastre passport of the land plot as a list of types of permitted use for the land plot established for the territorial zone where the corresponding land plot is located; 3) introducing into tax and land legislation the principle and mechanism for determining the amount of payments for land (land tax and rental fee) not depending on the type of permitted use of the land plot, but in relation to the territorial zone where such land plot is located; 4)
establishing the legal mechanism for state cadastre authorities, tax agencies, and local self-government bodies to obtain information on land use types independently changed by right holders (p. 132-152, 201-202) (Bandorin L.E. Permitted Use of Land Plots: Diss... Cand. Jurid. Sci. Moscow, 2011. P. 10.). ↩
27. Maximum (minimum and/or maximum) sizes of land plots and limiting parameters of permitted construction, reconstruction of capital construction objects may [include](/enc/32054/ "Definition of the term 'include' in legal
development within the boundaries of the land plot, defined as the ratio of the total area of the land plot that can be developed to the entire area of the land plot; 5) other indicators (Article 38 of the Urban Planning Code of the Russian Federation). ↩ 28. Commentary on the Urban Planning Code of the Russian Federation (per-paragraph) / Ed. S.A. Bogolyubov. Moscow, 2012. P. 200. ↩ 29. Kudinova O.P. Commentary on Federal Law No. 78-FZ of June 18, 2001 "On Land Management" (per-paragraph) // System "Consultant Plus". 2010. ↩ 30. According to Part 6 [Article 36 of the Urban Planning Code of the Russian Federation](https://alexeyborisov.ru/law/grkrf/st36/
"Article 36 of the Land Code of the Russian Federation (GK RF), urban planning regulations are not established for forest fund lands, lands covered by surface waters, reserve lands, protected natural territories (excluding health resort and sanatorium lands), agricultural lands within agricultural use zones, land plots located within the boundaries of special economic zones. ↩
31. Krassov O.I. Commentary on the Land Code of the Russian Federation (Article-by-article). Moscow, 2009. ↩"