Legal regulation of functional zoning

According to S.A. Bogolyubov, ecological and legal issues of settlements' development are closely related to objects of legal protection of the environment within them, which are in ecological and "urban planning" interrelationships, 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.

Research on functional zoning appears justified to begin with defining the content of this concept. According to N.V. Kichigin, general plans are used to establish functional zoning of the territory of a municipal formation, including settlements. As a general rule, by adopting a general plan for

a defined territory is assigned a corresponding type of functional zone, which receives a detailed legal regime in the land use and development rules of the municipal formation³.

Then O.M. Kozir' notes that the term term «functional zoning» is used in current legislation when regulating the planning of development of territory of the city. An exact definition of functional zoning does not exist; it follows from the context of normative legal acts in which this term is used. In accordance with them under

Functional zoning refers to the division of the city territory into parts (planning areas), "functionally" interconnected with each other⁴.

In paragraph 3 of Article 13 of the Model Land Code for CIS member states Commonwealth of Independent States⁵, it is noted that the general plan of the city, another 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, 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 technical regulations. In paragraph 5 of article 15 of the Federal Law "On Particularly Protected Natural Territories"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 states CIS⁷, it is noted that the general plan of a city, other settlement

is the main legal document determining, in the interests of the population, the conditions of residence, directions and boundaries of territorial development, functional zoning, construction and improvement of the territory, preservation of historical and cultural heritage 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, functional zoning of the territory of the sanitary protection zone and its usage regime should be defined.

In federal legislation, the term "functional zone" is also widely used. This term, for example, appears in the Civil Code of the Russian Federation⁹, the Labor Code of the Russian Federation¹⁰, and the Federal Law "On Particularly Protected Natural Territories"¹¹. The establishment of functional zones in the Civil Code of the Russian Federation is associated with territorial planning¹². Whereas functional zones in the forest park zone represent parts

forest park zone, which are designated for the purpose of differentiating the usage regime, protection, conservation, and reproduction of forests in various parts of the forest park zone¹³.

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

In our opinion, the aforementioned functional zones, despite their unified terminological designation, have a different legal nature. In paragraph 1 of this chapter of the dissertation, the provision was substantiated according to which 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 entities has a specific character and is carried out with respect to the entire territory of the municipal entity (accordingly, it has a comprehensive nature). The above-mentioned provision allows considering the definition of these zones as a type of territorial zoning. Since the result of implementing this type of territorial zoning is the determination of functional zones and their functional purpose, such a type

territorial 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 Member States of the CIS.

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

The legal nature of functional zoning is determined by the legal nature of territorial planning, which represents planning of territory development, including the establishment of functional zones, determination of planned locations for federal-level objects, regional-level objects, and local-level objects (paragraph 2 Article 1 of the Land Code of the Russian Federation). This conclusion is also confirmed by the Ruling of the Supreme [Court](/enc/32702/

"Definition of the term 'court' in the legal encyclopedia") of the Russian Federation dated 24.06.2009 in case No. 78-G09-22, where it is noted that the applicant's claims that attributing the disputed residential area to the functional zone "R 2" by the contested Law contradicts paragraph 11 of Article 35 of the Russian Civil Code, as it is not an area occupied by urban forests, squares, parks, urban gardens, ponds, lakes, reservoirs, beaches, etc., were examined by the court and correctly deemed unfounded, since the definition 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 June 20, 2012 No. 78-APG12-7, reference by the applicants that classifying the disputed territory as a zone of engineering and transport infrastructure makes residence there dangerous to life and health residence of citizens is not a basis for overturning the court's decision court, since the legislature's classification of the territory into a specific

The presence of a functional zone in itself does not indicate a violation of citizens' rights to a favourable environment¹⁵.

Commenting on Article 9 of the Land Code of the Russian Federation (GK RF) E.A. Galinskaya notes that territorial planning represents a list of administrative and legal actions in content, 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, as it seems, is confirmed 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 development activities, long-term planning for 10 or more years is typically referred to¹⁸. The position presented above, in our view, appears justified, as it is supported by the provisions of parts 10 and 11 [of article 9 of the Russian Urban Planning Code (GPK RF)](https://alexeyborisov.ru/law/grkrf/st9/ "Article 9 of the Russian Urban Planning Code (GPK RF)), which stipulate that territorial planning is carried out for a period of no 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 court of the first instance established that the general plan of the city depicts planned changes only in a general form, thereby defining freedom for subsequent consideration of specific problems and tasks, shows the overall picture of the intended distribution of urban territories in accordance with the strategic objectives of urban development, provides for the preparation of more detailed

plans, including conceptual and working project plans for construction²⁰.

Territorial Planning is carried out by both state authorities and local self-government bodies²¹. However, functional zone maps contain only documents of territorial planning prepared by local self-government bodies²². In other words, functional zoning is conducted solely at the level of local self-government bodies and is not carried out at the level of the state authorities of the Russian Federation or the state authorities of the subjects of the Russian Federation. In this context, E.K. Trutnev and

L.E. Bandorin note that state plans much more for itself than municipal formations do, while municipal formations plan much more for others - private individuals - than the state does. 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 urban planning zoning with legal implications

character²³.

At the same time, as noted by N.V. Kichigin, in conditions of gaps and collisions in existing urban planning, land, and other legislation, disputed situations arising during implementation of general plans are resolved by courts and arbitrazh courts through 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 Ruling of the Supreme Court of the Russian Federation dated June 20, 2012, No. 78-APG12-7, it is noted that in the applicant's view, the Law of Saint Petersburg "On the General Plan of Saint Petersburg" did not take into account the actually existing [zone](/enc/32701/ "Definition of the term 'Zone' in the legal encyclopedia) of residential development, and that the general plan should reflect the construction on the territory which has historically developed.

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

on the development of the territory, that is, on its possible change in the future²⁵.

Regulation on territorial planning, contained in the territorial planning scheme of the municipal district, includes: 1) information on types, purposes and names of objects of local importance for the municipal district planned to be located, their main characteristics, their location (names of settlements, inter-settlement territories, populated places are indicated), as well as characteristics of zones with special land use conditions in cases where establishment of such zones is required in

in connection with the placement of these objects; 2) parameters of functional zones established on interurban territories, in cases where interurban territories are planned for placement of federal-level objects, regional-level objects, local-level objects (excluding linear objects), as well as information on planned placement of federal-level objects, regional-level objects, and local-level objects within these zones (part 2 of [Article 19 of the Russian Urban Planning Code (GрK RF)](https://alexeyborisov.ru/law/grkrf/st19/

"Article 19 of the Civil Code of the Russian Federation"))

The provisions on territorial planning contained in the general plan of the settlement and city district include: 1) information regarding the types, purposes, and names of planned objects of local significance for the settlement and city district, their main characteristics, their location (for objects of local significance that are not linear objects, functional zones are indicated), as well as characteristics of zones with special conditions for land use in cases where

establishment of such zones is required in connection with the placement of these objects; 2) parameters of functional zones, as well as information on objects of federal significance, objects of regional significance, objects of local significance planned for placement within them, excluding linear objects (part 4 Article 23 of the Russian Federation Land Code (GRC RF)).

According to E.A. Galinovskaya, relations concerning territorial planning in fact extend beyond those related to the preparation of corresponding documents — this conclusion can be drawn from the content of Chapter 3 of the Land Code of the Russian Federation. Approval of territorial planning documents determines the purpose and main types of use of real estate objects located on the corresponding territory, main directions of construction, and other types of use of territories, lands, and land plots²⁶. According to N.L. Lisina,

The functional designation of territories and the intensity of their use are determined taking into account restrictions on urban development use²⁷.

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, classifying the territory into the functional zone ZJD carried out by Law No. 274-44 contradicts paragraph 6 Article 14 of the Russian Civil Code and SanPiNs, and violates the rights of the property owner, as it prevents the applicant from reconstructing real estate objects belonging to the owner with the aim of expanding production activities, prevents the use of these real estate objects in accordance with their intended purpose, and thus limits the owner's right to use

The concept of «Use» in the legal encyclopedia") refers to the utilization of objects belonging to him according to their intended purpose. In the previous version of the Law «On the General Plan of Saint Petersburg and the Boundaries of Zones of Protection for Cultural Heritage Objects on the Territory of Saint Petersburg», the disputed territory was classified as part of the multi-functional public and business development area – 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 Russian Urban Planning Code (GрК РФ), the general plan - document of territorial planning aimed at determining the purpose of territories, based on the principle of functional purpose and division of territory into corresponding functional zones, including information provided for by article 23 of the Russian Urban Planning Code (GрК РФ).

Under such circumstances, the court's conclusion that the disputed provisions of the Saint Petersburg City Law do not contradict the provisions of the Federal Law on Urban Planning and Construction of the Russian Federation 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 concerning the composition and content of general plans containing maps of boundaries of functional zones with development parameters for the respective zones²⁸.

As follows from the Ruling of the Supreme Court of the Russian Federation, the determination of general plan of functional zones is a predictive development of territories of municipal formations²⁹. At the same time, territorial planning documents are mandatory for state authorities and local self-government bodies when adopting decisions and implementing such decisions (paragraph 3 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.

municipal formations. A decision adopted or implemented based on such a map (but not the map itself map) may affect the rights and obligations of participants in land relations.

Preparation of the general plan project is carried out, including taking into account the results of public hearings on the general plan project, as well as considering proposals from interested parties (part 3 Article 24 of the Urban Planning Code of the Russian Federation). In relation 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 for the municipal district (part 5 [Article 20 of the Urban Planning Code of the Russian Federation]

[Russia](https

It is also important to note that the approval or amendment of a general plan establishing or changing the boundary of a populated area alters land categories, transferring lands of other categories into lands of populated areas or lands of populated areas into lands of other categories³⁰. 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 the boundaries of 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 on the approval of the corresponding territorial planning document of the municipal formation comes into force. Project of the territorial planning document undergoes a procedure for public hearings, during which the population may influence, including the determination of the functional purpose of functional zones. Thus, public hearings on projects of territorial planning documents

Planning is a form of public participation in determining the forecasted development of an area.

According to paragraph 5 of Article 9 of the Urban Planning Code of the Russian Federation, the preparation of territorial planning documents is carried out on the basis of strategies (programs) for the development of individual economic sectors, priority national projects, interstate programs, socio-economic development programs of subjects of the Russian Federation, plans and programs for comprehensive socio-economic development of municipal formations (if available), taking into account programs adopted in accordance with established procedures and implemented at the [expense](/enc/18601/ "Definition of the term 'Expense' in

from the legal encyclopedia) funds of the federal budget, budgets of subjects of the Russian Federation, local budgets, decisions by state authorities, local self-government bodies, and other main budgetary managers of the respective budgets, providing for the creation of objects of federal significance, objects of regional significance, objects of local significance, investment programs of subjects of natural monopolies, organizations of the communal complex, and information contained in the federal state information system for territorial planning.

1. 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-Practical Conference / Edited by E.L. Minina. Moscow, 2013. Pp. 12–13. ↩
2. According to data from the Ministry of Regional Development of Russia, by the end of 2013, the following had been approved: 89.4% of territorial planning schemes for municipal districts; 91.7% of general plans for urban districts; 80.5% of general plans for urban settlements; 57% of general plans for rural settlements (official website of the Ministry of Regional Development of the Russian Federation // [Electronic Resource]. URL: http://www.minregion.ru/news_items/3973). ↩
3. Kichigin N.V.

Urban forests: protection regime and use // Journal of Russian law. 2011. No. 6. Pp. 28 - 34. ↩
4. Volkov G.A., Golichenkov A.K., Kozyr' O.M. Article-by-article scientific and practical commentary on the Land Code of the Russian Federation / Prepared for the «Consultant Plus» system. 2002. ↩
5. Model Land Code for CIS member states (adopted in Saint Petersburg on December 4, 2004 by Decision No. 24-8 at the 24th plenary session of the Interparliamentary Assembly of CIS member states) // Informational

bulletin. Interparliamentary Assembly of the member states of the Commonwealth of Independent States. 2005. No. 35 (part 2). ↩
6. «A differentiated special protection regime (functional zoning) of national parks is established by the authorized federal executive authority» (paragraph 5 of Article 15 of the Federal Law "On Particularly Protected Natural Territories"). ↩
7. Model Land Code for member states of the CIS (adopted in St. Petersburg on 04.12.2004 by Decision 24-8 at the 24th

plenary session of the Interparliamentary Assembly of CIS Member States) // Informational bulletin. Interparliamentary Assembly of the Commonwealth of Independent States (CIS). 2005. No. 35 (Part 2). ↩
8. Approved by the decree of the Chief State Sanitary Doctor of the Russian Federation dated 25 September 2007 No. 74 "On introduction into force of a revised edition of sanitary-epidemiological rules and standards SanPiN 2.2.1/2.1.1.1200-03 "Sanitary Protection Zones and Sanitary classification"

"Concept of 'Classification' in the legal encyclopedia") of enterprises, structures, and other objects» // Russian newspaper from 09.02.2008 (No. 28). ↩
9. See, for example, paragraphs 2 and 5 of Article 1, Part 12 of Article 9, paragraph 4 of Part 1 of Article 19, paragraph 2 of Part 2 of Article 19, paragraph 3 of Part 3 of Article 19, Part 2.1 of Article 21, paragraph 4 of Part 3 of Article 23, paragraphs 1 and 2 of Part 4 of Article 23, paragraph 3 of Part 5 of Article 23, paragraph 9 of Part 8 of Article 23, Part 4.1 of Article 25, paragraph 2 of Part 1 of Article 34, Part 15 of Article 35, paragraph 3 of Part 2 of Article 36 of the Civil Code of the Russian Federation (GK RF). ↩
10. See, for example, paragraph 41.1 of Article 81, Part 3 of Article 103, Part 7 of Article 105 of the Land Code of the Russian Federation (LK RF).

↩ 11. See, for example, paragraphs 2 and 3 of article 17, paragraph 2 of article 21, paragraph 2 of article 29, paragraph 3 of article 38 of the Federal Law "On Protected Natural Areas". ↩ 12. Functional zones are understood as areas for which territorial planning documents define boundaries and functional purpose (paragraph 5 article 1 of the Land Code of the Russian Federation). ↩ 13. See, part 8 of the Regulation on Determining Functional Zones in Forest Park Areas, Areas and Boundaries of Forest Park Areas, Green Zones (approved by Government Decree of the Russian Federation dated December 14, 2009 No. 1007 // RSZ RF. 2009. No. 51. St. 6312) (hereinafter - Regulation on

definition of functional zones in forest-park areas, area and boundaries of forest-park areas, green zones). ↩
14. Ruling of the Supreme Court of the Russian Federation dated 24.06.2009 No. 78-Г09-22. Document was not published. Access mode: system. ↩
15. Ruling of the Supreme Court of the Russian Federation dated 20.06.2012 No. 78-АПГ12-7. Document was not published. Access mode: [system](/enc/23826/ "Definition of the term 'System' in the legal

"encyclopedias") «Consultant Plus». ↩
16. Commentary on the Urban Planning Code of the Russian Federation (per-article) / Ed. by S.A. Bogolyubov. Moscow, 2012. P. 76. ↩
17. Territorial planning is aimed at determining in territorial planning documents the designation of territories based on a combination of social, economic, ecological and other factors in order to ensure sustainable development of territories, development of engineering, transport and social infrastructure, taking into account the interests of citizens and their associations, the Russian Federation, subjects of the Russian Federation, municipal formations (part 1 [Article 9 of the Urban Planning Code

RF](https://alexeyborisov.ru/law/grkrf/st9/ "Article 9 of the Civil Code of the Russian Federation")). ↩
18. Vysockiy A.A. Land Use and Construction Rules: a guide to development. Experience in implementing zoning regulations in Kyrgyzstan. Bishkek, 2005. P. 32. ↩
19. Territorial planning schemes of the Russian Federation, territorial planning schemes of the subjects of the Russian Federation, territorial planning schemes of municipal districts, providing for the placement of linear objects of federal significance,

linear objects of regional significance, linear objects of local significance, are approved for a period of no less than twenty years. In other cases, the aforementioned territorial planning schemes are approved for a period of no less than ten years (part 10 Article 9 of the Russian Land Code). General plans for settlements, general plans for municipal districts are approved for a period of no less than twenty years (part 11 Article 10 of the Russian Land Code). ↩ 20. Ruling of the Federal Arbitration Court of the Western Siberian District dated March 31, 2009, Case No. F04-1246/2009 (1598-A75-19)

// Official website of the Higher Arbitration Court of the Russian Federation. [Electronic resource]. URL: http://kad.arbitr.ru/PdfDocument/340b0bf2-ef06-4391-b77e-bd29eb95b11e/A75-4273-2008_20090331_Postanovlenie%20kassacii.pdf ↩
21. According to part 2 Article 9 of the Land Code of the Russian Federation, territorial planning documents are divided into: 1) territorial planning documents of the Russian Federation, which are the schemes of territorial planning of the Russian Federation (part 1 Article 10 of the Land Code of the Russian Federation); 2) territorial planning documents of the subjects of the Russian Federation, which are the schemes of territorial planning

subjects of the Russian Federation (part 1 Article 14 of the Land Code of the Russian Federation); 3) territorial planning documents for municipal formations, which include: 1) territorial planning schemes for municipal districts; 2) general plans for settlements; 3) general plans for urban districts (part 1 Article 18 of the Land Code of the Russian Federation). ↩
22. The functional zones map includes: 1) territorial planning schemes for municipal districts (paragraph 4, part 1 [Article 19 of the Land Code of the Russian Federation

1. general plan of a settlement (paragraph 3 of part 2 Article 19 of the Urban Planning Code of the Russian Federation); 2) general plan of a settlement (point 4 of part 3 Article 23 of the Urban Planning Code of the Russian Federation); 3) general plan of a municipal district (point 4 of part 3 Article 23 of the Urban Planning Code of the Russian Federation). ↩

23. Trutnev E.K., Bandorin L.E. Commentary on the Urban Planning Code of the Russian Federation. Moscow, 2010. P. 228. ↩
24. Kichigin N.V. Current issues in applying general plans and land use and development regulations // Property Relations in the Russian Federation. 2014. No. 2. ↩
25. Ruling of the Supreme Court of the Russian Federation dated 20.06.2012 No. 78-APG12-7. The document was not published.

Access mode: system «Consultant Plus». ↩
26. Commentary on the Urban Planning Code of the Russian Federation (per article) / Ed. S.A. Bogolyubov. Moscow, 2012. P. 76. ↩
27. Lisina N.L. Ibid. P. 167. ↩
28. Ruling of the Supreme Court of the Russian Federation dated May 27, 2009 No. 78-G09-17. The document was not published. Access mode: system «Consultant Plus». ↩
29. Ruling of the Supreme Court of the Russian Federation dated June 24, 2009 No. 78-G09-22. The document was not published. Access mode: system «Consultant Plus». ↩
30. Kichigin N.V. Current issues in the application of general

Plans and Rules for Land Use and Construction // Property Relations in the Russian Federation. 2014. No. 2. ↩
31. According to paragraph 1 of Article 84 of the Russian Land Code the establishment or change of the boundaries of populated areas is: 1) adoption or amendment of the general plan of a city district, settlement, displaying the boundaries of populated areas, located within the territory of the corresponding municipal formation; 2) adoption or amendment of the territorial planning scheme of a municipal district, displaying the boundaries of rural

populated areas located outside the boundaries of settlements (on inter-settlement territories). ↩