Legal regulation of urban planning zoning

As noted by S.A. Bogolyubov, cities and populated areas are the main places of residence for citizens of the Russian Federation, who are called upon to create a favorable environment and other conditions necessary for the prosperity of quality of life. A 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 by no means an innocuous economic activity, both for the nature surrounding the construction site and for the cultural landscape in the city, its aesthetics². In the context provided, special importance is given to ensuring a favorable state of the environment when carrying out urban planning activities.

In scientific literature, emphasis is placed on the important role of land-use zoning in regulating urban development activities. According to N.V. Kichigin, land-use zoning should become the most important and effective tool for regulating urban development and land use within municipal territories, allowing municipalities to conduct independent municipal policy in the areas of land use and construction³. On the other hand, according to E.K. Trutnev, in a market economy under conditions of the real estate market, there can be no land-use zoning that establishes legally significant urban development regulations through municipal normative legal acts – Rules for Land Use and Development⁴.

Municipal zoning is the most detailed of all types of land use zoning considered within the scope of this study, as it is most thoroughly regulated under current Russian Federation legislation. Municipal zoning and individual aspects of municipal zoning are frequently discussed in scientific literature⁵. There is also a significant number of dissertation studies that provide a detailed examination of municipal zoning⁶.

According to A.P. Anisimov, the institution of urban planning zoning occupies a special place in the mechanism of legal regulation. It contains criteria for the legitimacy of behavior of subjects of land relations, since it specifies the characteristics of administrative (and not only) offenses recorded in blanket legal norms, and serves as a criterion for the legitimacy (illegality) of the behavior of subjects of land relations. The state of such institutions as the right to a favorable environment for life activities, liability for land violations (unauthorized construction, etc.), 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 significance of the system of territorial land use zoning in 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 completely eliminating the dependence of developers and the territory's population on the subjective discretion of local government officials when determining the type of permitted use of the land plot⁸.

The previously effective Urban Planning Code of the Russian Federation dated 07.05.1998 No. 73-FZ (hereinafter – the Urban Planning Code of the Russian Federation 1998)⁹distinguished between zoning¹⁰ and legal zoning¹¹. According to A.A. Vysokovsky, legal zoning is an ideology and technology of urban planning regulation intended for a market economy, aimed at achieving a balance of interests among different groups through a democratic process¹².

However, during the preparation of the new Urban Planning Code of the Russian Federation, doubts arose regarding the correctness of the term "legal zoning" itself, as using this term could lead to the perception that any other type of zoning (for example, zoning of the general plan) is non-legal¹³.

The current Russian Urban Planning Code uses the term "urban planning zoning"¹⁴. According to N.V. Kichigin, urban planning legislation provides such a universal mechanism for regulating various interests as urban planning or territorial zoning¹⁵. Whereas L.E. Bandorin considers urban planning zoning as the main method for determining permitted use¹⁶.

The content of the concept of "urban planning zoning" allows us to conclude that it includes two elements (list closed): 1) definition of territorial zones and 2) establishment of urban planning regulations. Moreover, the use of the coordinating conjunction "and" means that for this method of defining the legal regime of land, the mandatory presence of both elements is required. In other words, urban planning zoning is not merely the establishment of territorial zones or merely the establishment of urban planning regulations; otherwise, the law would have used the disjunctive conjunction "or."

The result of urban planning zoning is the preparation of the Land Use and Development Plan (ПЗЗ)¹⁷. According to N.V. Kichigin, although the main task of the Land Use and Development Plan is to regulate construction, nevertheless, they contain significant potential for nature conservation¹⁸. According to paragraph 2 of Article 30 of the Urban Planning Code of the Russian Federation, land use and development rules include: 1) the procedure for their application and amendments to these rules; 2) a map of urban planning zoning¹⁹; 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.

The preparation of the draft land use plan is carried out, among other things, taking into account the results of public hearings and proposals from interested parties (paragraph 3 of article 31 of the Land Code of the Russian Federation). At the same time, A.P. Anisimov considers public hearings on draft land use plans and general plans as the most effective form of public participation in making ecologically significant decisions²¹.

The urban planning regulation includes three elements: 1) types of permitted land use within the boundaries of the relevant territorial zone, including everything located above and below the surface of the 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 and reconstruction of capital construction objects; 3) restrictions on the use of land plots and capital construction objects (paragraph 6 of article 1 of the Land 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 not allowed." Thus, an urban planning regulation can simultaneously contain provisions on what is allowed and what is not allowed.

The positive part of the urban planning regulation — "what is allowed" — may be established by local self-government bodies in land use and development rules. "What is allowed" is established taking into account "what is not allowed."

The negative part of the urban planning regulation, "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 special-use zones (see paragraph 4 of Article 1 of the Urban Planning Code of the Russian Federation). Special-use zones are recorded in territorial planning documents (including general plans) and are mandatorily reflected in land use and development rules²².

According to N.V. Kichigin, the Urban Planning Code of the Russian Federation, first of all, extends the mechanism of permitted use not only to land plots but also to capital construction objects (real estate objects); 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 public relations. For example, A.V. Cherednikov justified the position that an optimal combination of permissions and restrictions in urban planning regulations will allow ensuring a balance between public and private interests²⁴.

The legislation provides for the possibility of landowners and owners of capital construction objects to independently choose any type of permitted use provided by zoning regulations (paragraph 2 of point 2 of article 7 of the Land Code of the Russian Federation). According to N.V. Kichigin, this provision should not be considered as an absolute allowance to act solely in accordance with the provisions of the urban planning regulation. Provisions of the urban planning regulation must be considered in conjunction with legislative acts of the Russian Federation, technical regulations, sanitary and epidemiological requirements (SanPiN), and other mandatory requirements. For example, even in an industrial area of a populated place, it is not possible to locate a nuclear power plant without special studies and agreements²⁵. L.E. Bandorin proposed a mechanism for implementing the right to choose any type of permitted use provided by zoning regulations²⁶.

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 Decision of the Presidium of the Higher Arbitration Court of the Russian Federation dated 18.06.2013 No. 136/13 in case No. A55-23145/2010, the limited liability company "G." (hereinafter - the company) filed a claim with the Arbitration Court of S. region against the Duma of the city district of S. and the head of the city district of S., requesting that the decision of the Duma of the city district of S. dated 08.04.2010, in part changing the zone Ц-1 to zone Р-2 (zone for parks, boulevards, and embankments) concerning the land plots belonging to the applicant for parking purposes be recognized as not complying with the provisions of articles 30, 34, 36 of the Land Code of the Russian Federation, articles 40, 85 of the Civil Code of the Russian Federation, and invalid.

The decision of the Arbitration Court of S. region dated 19.12.2011 satisfied the claims submitted. The Federal Arbitration Court of P. district, by its ruling dated 29.03.2012, overturned the decision dated 19.12.2011 and referred the case for reconsideration to the first instance court. The decision of the Arbitration Court of S. region dated 27.07.2012 satisfied the claims submitted. The Federal Arbitration Court of P. district, by its ruling dated 13.11.2012, left the decision dated 27.07.2012 unchanged.

As established by the courts and apparent from the case materials, the disputed act introduced changes to the land use zoning map, including changing zones Ж-3 and Ц-1 to zone Р-2.

Cancelling 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 Higher 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 requiring compliance with urban planning regulations. The specific extent of such limitation is established in accordance with land use and development regulations under urban planning legislation.

The task of municipal authorities when developing land use and development rules is not to ensure the priority of landowners' rights at the expense of other interests, but to coordinate these rights and interests, establishing a reasonable and fair balance between them.

Courts' conclusion that adopting changes to the Rules creates obstacles for society in further using parking lots is erroneous. Acknowledging the contested act as invalid, courts failed to take into account that this provision explicitly provides for the possibility of continuing previous use of land plots.

Courts also recognized that the adoption of the disputed act after the owner received the land plot's GPZU is a violation of his rights, as it deprives him of the possibility of further using the land plots for construction of real estate objects. However, taking into account that the issuance of the disputed act does not contradict the norms of the Land Code of the Russian Federation and the Civil 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 scope of the limitation of the company's property rights resulting from changes made to the Rules has significantly increased compared to the previously existing one. In connection with this, the owners of the land plots are not deprived of the right to assert claims under paragraph 7 of article 23 of the Land Code of the Russian Federation, including the right to purchase the land plots from them.

Article 38 of the Russian Federation Land Code defines the content of maximum land plot sizes and maximum parameters of permitted construction and reconstruction of capital construction objects²⁷. According to N.V. Kichigin, establishing such parameters and sizes can become an effective tool for municipal urban planning and land policy, will allow more efficient use of land plots and capital construction objects located on them, and reduce administrative costs in business activities in the construction sector²⁸.

It is also important to determine the object of urban planning zoning. According to O.P. Kudinova, "territorial zones are established as a result of zoning within the boundaries of urban development"²⁹. In the given context, it should be taken into account that the Urban Planning Code of the Russian Federation establishes an exhaustive list of lands and land plots for which no urban planning regulations are established³⁰.

According to O.I. Krassov, in relation to lands for which urban planning regulations are not established (urban planning zoning is not carried out), it is not possible to apply the term "permitted use of a land plot", since there are no legal grounds for this³¹.

Since the establishment of a land use regulation is one of the essential elements of land use zoning, the absence of a land use regulation for a specific category of lands implies the impossibility of carrying out land use zoning in relation to territories within the boundaries of the corresponding category of lands. It is also correct to state the reverse, that land use zoning can be carried out in relation to territories not mentioned in part 6 of article 36 of the Land Code of the Russian Federation.

Taking the above into account, we consider that urban planning zoning is a method of determining the legal regime of territorial zones. The legal regime of territorial zones is established from the moment the normative legal act on the approval of land use and development rules comes into force. The legal regime of lands is determined, among other things, based on their belonging to a certain territorial zone. Thus, urban planning zoning can be regarded as a method of determining the legal regime of lands. At the same time, the legal regime of a territorial zone is broader than the legal regime of lands within the corresponding zone, since urban planning zoning determines the legal regime not only of land plots but also of capital construction objects.

The content of the legal regime of territorial zones includes: 1) permitted uses of land plots established within the boundaries of the corresponding territorial zone, as well as 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 allowed construction and reconstruction of capital construction objects; 3) restrictions on the use of land plots and capital construction objects.

The project of land use and development rules undergoes a public hearing procedure, during which the population can 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 land.

200. (Bandorin L.E. Permitted Use of Land Plots: diss... candidate of legal sciences. M., 2011. P. 9.).