Legal regulation of functional zoning

According to S.A. Bogolyubov, eco-legal issues related to the development of settlements are closely linked to environmental objects protected by law within them, which are in ecological and "urban planning" interrelation, the use and protection of which are regulated by urban planning and environmental legislation, since they represent economic, ecological, recreational, demographic, aesthetic, and urban planning interests associated with the sustainable development of settlements¹. It appears that the effectiveness of solving such problems will largely depend on timely and high-quality preparation of documents providing for the development of territories, primarily territorial planning documents².

The study of functional zoning is best approached by first defining the concept itself. According to N.V. Kichigin, general plans are used to establish the functional zoning of the territory of a municipal formation, including populated areas. As a general rule, the adoption of a general plan for a specific area determines the corresponding type of functional zone, which receives detailed legal regulation in the land use and development rules of the municipal formation³.

Meanwhile, O.M. Kozir' notes that the term "functional zoning" is used in current legislation when regulating the planning of urban territory development. An exact definition of functional zoning does not exist; it follows from the context of normative legal acts in which this term is used. According to them, functional zoning refers to the division of the city's territory into parts (planning districts) that are "functionally" interrelated⁴.

In paragraph 3 of article 13 of the Model Land Code for CIS member states⁵it is noted that the general plan of a city or other settlement is the main legal document determining, in the interests of the population, living conditions, directions and boundaries of territorial development, functional zoning, construction and landscaping of the territory, as well as preservation of historical, cultural and natural heritage.

At the same time, it is necessary to take into account that the term "functional zoning" is used in several laws, as well as other normative legal and normative technical acts. In paragraph 5 of article 15 of the Federal Law "On Protected Natural Areas"⁶, functional zoning is understood as a differentiated regime of special protection for national parks. In point 3 of article 13 of the Model Land Code for CIS member states⁷, it is noted that the general plan of a city or other settlement is the main legal document determining, in the interests of the population, living conditions, directions and boundaries of territorial development, functional zoning, construction, and improvement of the territory, as well as preservation of historical and cultural and natural heritage.

According to paragraph 3.10 of SanPiN 2.2.1/2.1.1.1200-03 "Sanitary Protection Zones and Sanitary Classification of Enterprises, Structures and Other Objects" (hereinafter - SanPiN 2.2.1/2.1.1.1200-03)⁸, in the project of a sanitary protection zone, including, the functional zoning of the territory of the sanitary protection zone and the mode of its use should be defined.

The term "functional zone" is also widely used in federal legislation. For example, this term is used in the Russian Federation's Land Code⁹, the Forest Code of the Russian Federation¹⁰, and the Federal Law "On Protected Natural Areas"¹¹. The establishment of functional zones in the Land Code of the Russian Federation is associated with territorial planning¹². Whereas functional zones within a forest-park zone are parts of the forest-park zone that are designated for differentiation of usage regimes, protection, and reproduction of forests in different areas of the forest-park zone¹³.

Thus, the legislation uses the general term "functional zone" in relation to: 1) functional zones in territorial planning documents of local self-government bodies; 2) functional zones in the forest-park area; 3) functional zones determined with respect to individual specially protected natural territories.

In our opinion, the aforementioned functional zones, despite their uniform terminological designation, have different legal nature. In paragraph 1 of this chapter of the dissertation, it was justified that zoning of specially protected natural territories should be considered as ecological, rather than functional zoning.

The definition of functional zones and their functional purpose in territorial planning documents for municipal formations has a significant specificity and is carried out with respect to the entire territory of the municipal formation (and thus, has a comprehensive character). The above-mentioned provision allows considering the determination of these zones as a type of land zoning. Since the result of implementing this type of land zoning is the definition of functional zones and their functional purpose, this type of land zoning should be considered as functional zoning. The validity of this position is also confirmed by the previously cited positions of scholars and provisions of the Model Land Code for CIS member states.

Thus, within the scope of this paragraph, functional zoning will be considered as a type of land zoning that involves defining functional zones and their functional purposes in territorial planning documents of municipal formations. At the same time, it is important to determine the impact of functional zoning on the legal regime of lands.

The legal nature of functional zoning is determined by the legal nature of territorial planning, which represents the planning of territory development, including the establishment of functional zones and the definition of planned placement of federal-level objects, regional-level objects, and local-level objects (paragraph 2 of Article 1 of the Land Code of the Russian Federation). This conclusion is also confirmed by the Ruling of the Supreme Court of the Russian Federation dated June 24, 2009, in case No. 78-G09-22, which notes that the claimant's assertion that attributing the disputed territory of a residential zone to the functional zone "R 2" contradicts paragraph 11 of Article 35 of the Land Code of the Russian Federation because it is not an area occupied by urban forests, parks, gardens, ponds, lakes, reservoirs, beaches, etc., was examined by the court and correctly found to be unfounded, since the determination of functional zones in the general plan of the city represents a forecasted development of its territories¹⁴.

However, as noted in the Ruling of the Supreme Court of the Russian Federation dated 20.06.2012 No. 78-APG12-7, the applicants' assertion that classifying the disputed territory as part of the engineering and transport infrastructure zone makes living there dangerous to life and health is not a basis for overturning the court's decision, since the legislature's classification of the territory into a specific functional zone by itself does not indicate a violation of citizens' rights to a favorable environment¹⁵.

Commenting on Article 9 of the Land Code of the Russian Federation, E.A. Galinovskaya notes that territorial planning represents a set of administrative-legal actions aimed at determining future use and fixing in relevant documents the main types of combined use of objects located on the corresponding territory¹⁶. This conclusion, it seems, is supported by certain provisions of the Land Code of the Russian Federation¹⁷.

According to A.A. Vysokovsky, planning can be short-term or medium-term (up to 3 years) and long-term. In urban planning activities, usually reference is made to long-term planning for 10 or more years¹⁸. The position presented above, in our view, appears to be justified, as it is confirmed by the provisions of paragraphs 10 and 11 of article 9 of the Russian Urban Planning Code, which stipulate that territorial planning is carried out for a period of not less than 10 and 20 years¹⁹.

Attempts to disclose the content of territorial planning are made in judicial practice. For example, having examined the case materials, the first instance court established that the city's general plan depicts planned changes only in a general form, thereby determining freedom for subsequent consideration of specific problems and tasks, showing an overall picture of the intended distribution of urban territories in accordance with strategic objectives of urban development, and provides for the preparation of more detailed plans, including conceptual ones as well as working construction projects²⁰.

Territorial planning is carried out by both state authorities and local self-government bodies²¹. However, the maps of functional zones contain only documents of territorial planning by local self-government bodies²². In other words, functional zoning is carried out only at the level of local self-government bodies and is not carried out at the level of the state authorities of the Russian Federation and the state authorities of the subjects of the Russian Federation. In this context, E.K. Trutnev and L.E. Bandorin note that the state plans much more for itself than municipal formations do, while municipal formations plan much more for others - private individuals. To plan "for oneself", functional zoning is not needed. To plan "for others," functional zoning is necessary as a preparatory technological stage for the subsequent implementation of land-use zoning, which has a legal character²³.

At the same time, as noted by N.V. Kichigin, under conditions of gaps and colliding provisions in existing urban planning, land use, and other legislation, courts and arbitrazh courts resolve controversial situations arising during the implementation of general plans through the interpretation of legislation. However, judicial practice does not provide answers to all questions arising in practice; moreover, it also suffers from contradictions and instability²⁴.

In the Decision of the Supreme Court of the Russian Federation dated 20.06.2012 No. 78-АПГ12-7, it is noted that in the opinion of the applicant, the Law of Saint Petersburg "On the General Plan of Saint Petersburg" did not take into account the actually existing residential construction zone, and that the general plan should reflect the development of territory that has historically formed.

In the motivational part of the cited ruling by the Supreme Court of the Russian Federation, it is pointed out that there is no obligation for state bodies of a subject of the Russian Federation to determine functional zones in the general plan of the city in accordance with the actual use of the territory, since according to current legislation, the general plan is a planning document. Accordingly, territorial planning is aimed not at fixing the existing situation, but at the development of the territory, that is, its possible change in the future²⁵.

The provisions on territorial planning contained in the municipal district's territorial planning scheme include: 1) information about the types, purpose, and names of objects of local significance planned for placement within the municipal district, their main characteristics, their location (the names of the settlement, inter-settlement territory, populated area are indicated), as well as characteristics of zones with special land use conditions in cases where such zones need to be established due to the placement of these objects; 2) parameters of functional zones established on inter-settlement territories, in cases where the placement of federal-level, regional-level, and local-level objects (excluding linear objects) is planned on inter-settlement territories, as well as information about the federal-level, regional-level, and local-level objects planned for placement within these zones (part 2 of article 19 of the Russian Urban Planning Code).

The provisions on territorial planning contained in the general plan of the settlement and municipal district include: 1) information regarding the types, purpose, and names of objects of local significance planned for placement within the settlement and municipal district, their main characteristics, their location (for objects of local significance that are not linear objects, functional zones are specified), as well as characteristics of zones with special land use conditions in cases where such zones need to be established due to the placement of these objects; 2) parameters of functional zones, as well as information regarding objects of federal significance, objects of regional significance, and objects of local significance planned for placement within them, excluding linear objects (part 4 of article 23 of the Russian Urban Planning Code).

According to E.A. Galinskaya, the relations concerning territorial planning in fact are broader than those related to the preparation of the corresponding documents – this conclusion can be drawn from the content of Chapter 3 of the Russian Urban Planning Code. The approval of territorial planning documents determines the purpose and main types of use of real estate located on the relevant territory, main directions of construction and other uses of territories, lands and land plots²⁶. According to N.L. Lisina, the functional purpose of territories and the intensity of their use are determined taking into account restrictions on territorial development²⁷.

In the Ruling of the Supreme Court of the Russian Federation dated May 27, 2009, No. 78-G09-17, it is noted that, according to the applicant's opinion, the allocation of the territory to the functional zone of ZHZ, carried out by Law No. 274-44, contradicts paragraph 6 of Article 14 of the Land Code of the Russian Federation and SanPiNs, and violates the rights of the property owner, as it prevents the applicant from carrying out reconstruction of real estate objects belonging to the owner in order to expand production activities, hinders the use of these real estate objects according to their intended purpose, and thus limits the right of the owner to use his property according to its intended purpose. In the previous version of the Law "On the General Plan of Saint Petersburg and the Boundaries of Protection Zones of Cultural Heritage Objects within the Territory of Saint Petersburg," the disputed territory was classified as part of the multifunctional public-administrative development zone – D 1.

In the motivational part of the Ruling of the Supreme Court of the Russian Federation, it is noted that in accordance with Articles 1, 9, 63 of the Urban Planning Code of the Russian Federation (GPK RF), a general plan is a territorial planning document aimed at determining the purpose of territories, based on the principle of functional designation and division of territory into corresponding functional zones, including information provided for by Article 23 of the GPK RF.

Under such circumstances, the court's conclusion that the disputed provisions of the Saint Petersburg City Law do not contradict the provisions of the GPK RF is correct and corresponds to the provisions of the federal law regulating relations in the field of urban planning activities as a whole, including in part relating to the composition and content of general plans containing maps of boundaries of functional zones with development parameters of the respective zones²⁸.

As follows from the Ruling of the Supreme Court of the Russian Federation, the determination of general functional zone planning is a forecasted development of territories of municipal formations²⁹. At the same time, territorial planning documents are mandatory for state authorities and local self-government bodies when making decisions and implementing such decisions (paragraph 3 of Article 9 of the Land Code of the Russian Federation). Such decisions may be adopted or implemented, including on the basis of a functional zones map, which is an integral part of territorial planning documents of municipal formations. A decision adopted or implemented on the basis of such a map (but not the map itself) may affect the rights and obligations of participants in land relations.

The preparation of the general plan project is carried out, among other things, taking into account the results of public hearings on the general plan project, as well as taking into account proposals from interested parties (part 3 of article 24 of the Land Code of the Russian Federation). With regard to territorial planning schemes for municipal formations, it is stated that interested parties are entitled to submit their proposals regarding the project of the territorial planning scheme of the municipal district (part 5 of article 20 of the Land Code of the Russian Federation).

It is also important to note that approval or amendment of a general plan establishing or changing the boundary of a populated area changes the category of land, transferring lands of other categories into lands of populated areas or vice versa³⁰. This conclusion is based on provisions of the Land Code of the Russian Federation³¹.

Based on the analysis of legislation, judicial practice and scientific literature, it can be concluded that functional zoning is not a method for determining the legal regime of functional zones and land within such zones. At the same time, functional zoning may have an indirect impact on the rights and obligations of participants in land relations.

The functional purpose of functional zones is determined from the moment the normative legal act approving the relevant territorial planning document comes into force. The project of the territorial planning document undergoes a public hearing procedure, during which the population can influence, including the determination of the functional purpose of functional zones. Thus, public hearings on projects of territorial planning documents are a form of public participation in determining the anticipated development of the territory.