Relationship Between Functional, Urban Planning, and Ecological Zoning

According to S.A. Bogolyubov, the relationship—delimitation and interaction—of competing norms of Russian legislation in the fields of urban planning and environmental law represents an important task and a specific problem in their implementation, requiring qualified professional consideration and resolution in order to enhance the effectiveness of provisions, mutual complementarity, prevention of duplication, parallelism, and overlapping of norms and legal institutions¹. The issues of the relationship between norms of urban planning and environmental legislation have not been an exception in terms of land zoning.

In scientific literature, emphasis is placed on the incoherence of norms regulating social relations related to territorial zoning. For example, A.P. Anisimov, G.L. Zemlyakova and N.N. Melnikov note that at present, the legislation refers to more than ten different, loosely connected types of zoning². According to O.I. Krassov, the term "zoning" is widely used in our legislation. However, a clear understanding of what zoning represents as a legal tool, through which tasks of regulating land use are solved, is still lacking in land law theory and legislation³.

As noted by N.I. Khludeneva, among the main reasons for the low effectiveness of regulatory possibilities in environmental law is the issue of its collisibility (contradictoriness), caused by various factors and requiring an adequate solution⁴. For norms regulating social relations related to territorial zoning, the presence of collisions is characteristic. As examples, one can cite problems associated with the relationship between "territorial zoning" in the Russian Federation Code of Environmental Law and "urban planning zoning" in the Russian Federation Urban Planning Code⁵, as well as the absence of unified terminology applicable to norms regarding the zoning of specially protected natural territories⁶.

To eliminate existing collisions, it is necessary to systematize the norms regulating social relations related to territorial zoning. One of the measures aimed at systematizing such norms can be determining the relationship between the types of territorial zoning considered within the scope of this study.

As noted by N.V. Kichigin, there remains uncertainty regarding the relationship between the Land Use Plan (PZZ) and general plans of municipal formations. According to paragraph 3 of Article 31 of the Russian Federation's Urban Planning Code⁷, when preparing the PZZ, provisions of general plans should be taken into account. However, paragraph 9 of the same article⁸ establishes that the PZZ project must be checked for compliance with the general plan. This formal but very important contradiction prevents a clear conclusion regarding the relationship between general plans and the PZZ⁹.

At the same time, it is also important to consider the provisions of paragraph 2 of part 1 of article 34 of the Russian Federation's Land Code¹⁰ and paragraph 3 of part 2 of article 36 of the Russian Federation's Land Code¹¹, according to which the boundaries of territorial zones and urban planning regulations are established, including taking into account functional zones. Commenting on part 3 of article 31 of the Russian Federation's Land Code¹², E.K. Trutnev and L.E. Bandorin consider the relationship between the concepts of "in accordance with", "on the basis of", and "taking into account"¹³. As a result of such consideration, the authors come to the conclusion that the most flexible formulation of the condition is "taking into account", while the most rigid one is "in accordance with".

In scientific literature, the close interrelation as well as significant differences between territorial planning and urban development regulation are emphasized. According to A.A. Vysokovsky, urban development activities are determined by two main components that are not duplicated in other areas of activity—territorial (or, more accurately, spatial) planning and urban development regulation. These two parts are closely related, however they differ significantly in terms of objectives, tools, subjects, and content of activities¹⁴. If the area of territorial planning is mainly aimed at developing and adopting long-term decisions regarding the development of the urban community and the physical infrastructure of the city, then the regulation sphere covers the law enforcement part of management associated with the daily, current implementation of these decisions¹⁵.

As noted by N.V. Kichigin, based on the documentation of territorial planning, local self-government bodies of settlements, urban districts, and municipal districts (regarding inter-settlement territories) develop zoning documentation for urban development: land use and construction rules for municipal formations¹⁶. Thus, territorial planning documents serve as the basis for preparing land use and construction regulations.

According to A.P. Anisimov, the development of territorial planning documents determines the strategy for the territory's development. The adoption of land use and construction rules defines the tactics for achieving set goals¹⁷.

Attempts to determine the relationship between functional zoning and territorial planning are made in judicial practice. For example, in the Decision of the Arbitration Court of Samara Region dated 19.10.2009 in case No. A55-7571/2009, it is noted that territorial zones established on the land use and construction zoning map in the Land Use and Development Rules should correspond to the functional purpose of the territory established in the general plan¹⁸.

As Steven Butler notes, functional zoning refers to dividing types of use into different categories according to the general plan, whereas legal zoning refers to either a law or provision based on which a city is divided into zones, thereby simplifying the process of applying legislatively prescribed procedures and criteria. Legal zoning is one of the forms of land use regulation activities¹⁹.

The relationship between functional zoning and urban planning zoning is sometimes defined in normative legal acts of municipal formations. For example, part 4 of the decision of the City Duma of Nizhny Novgorod dated 17.03.2010 No. 22 "On the General Plan of the City of Nizhny Novgorod"²⁰ notes that land use and construction rules in Nizhny Novgorod, approved by the decision of the City Duma of Nizhny Novgorod dated 15.11.2005 No. 89, apply in part not conflicting with the general plan of the city of Nizhny Novgorod.

The position that there must be no contradictions between functional zoning in territorial planning documents and land use and development zoning in land use and construction regulations is also expressed in scientific literature. For example, according to A.K. Shchukin, land use and construction zoning in land use and development regulations may refine the functional zoning approved by the general plan, but cannot contradict it²¹. Whereas according to E.K. Trutnev and L.E. Bandorin, professionals in urban planning sometimes make a mistake when they prepare both the general plan project and the land use and development regulations project "in one bottle", where there is no difference between the functional zoning of the first and the land use zoning of the second²².

N.V. Kichigin notes that the provisions of the Territorial Planning Documents (TPD) do not need to strictly correspond to the general plan, since these documents have different purposes and functional objectives. This is confirmed by paragraph 12 of Article 9 of the Russian Federation Land Code, according to which the adoption in territorial planning documents of boundaries of functional zones does not entail changes in the legal regime of lands located within those zones. In contrast to the general plan, TPDs specifically define the legal regime of lands. It appears that provisions of the general plan must be necessarily taken into account in terms of the placement of local-level capital construction objects. In any case, this issue requires special regulation in the Russian Federation Land Code²³.

Mismatch between territorial planning documents and urban development zoning frequently leads to legal disputes. In the decision of the Federal Arbitration Court of the Urals Circuit dated 27.07.2012 No. F09-6314/12, it is noted that after the company submitted a request to the administration of the City District P. regarding amendments to the lease agreement for the land plot, the contested decision by the city council introduced changes to the Land Use and Development Rules for the territory of the city district, specifically: the area within the park for culture and recreation was reclassified from zone Ж-3 to zone ОД (С-3), while no amendments were made to the lease agreement.

In the reasoning part of the decision by the Federal Arbitration Court of the Urals Circuit, it is stated that according to the General Plan of the city of P., the disputed land plot is classified as belonging to the zone for medium-rise multi-family residential buildings. The court came to a lawful conclusion that the changes introduced into the Land Use and Development Rules for the territory of the city district of P. by the contested decision of the city council do not correspond to the General Plan of the city of P., which, in turn, does not comply with the provisions of articles 24, 31, 33 of the Urban Planning Code of the Russian Federation²⁴.

According to N.A. Andrianov, the general plan of the city, being a document of territorial planning, should form the basis for the development of land use and construction rules, which are documents of territorial zoning. Together, the general plan of the city and the land use and construction rules create conditions for implementing the principle of sustainable development of urban territory established by the Urban Planning Code of the Russian Federation. The basis of territorial planning is the principle of dividing the urban territory into functional zones, taking into account which territorial zones are formed, as reflected in the land use and construction rules. In order to avoid contradictions between territorial planning documents and the classification and composition of territorial zones provided for by legislation, it is necessary to establish at the regulatory level the types and composition of functional zones reflected in general plans²⁵.

It should be noted that territorial planning documents are mandatory documents in accordance with which the preparation of the land use and development rules project (a zoning document defining the legal regime of lands) is carried out²⁶. At the same time, the approval in territorial planning documents of functional zones does not entail a change in the legal regime of lands located within these zones (paragraph 12 of Article 9 of the Urban Planning Code of the Russian Federation).

According to N.V. Kichigin, functional zones themselves do not establish the legal regime of land plots; however, functional zones indirectly determine the legal regime of lands and land plots through detailing in territorial zones established in the Land Use and Development Plan (PZD). We believe that the territorial zones of the PZD should correspond to the functional zones of general plans. Thus, the relationship and interconnection between the general plan and the PZD are established, as well as the continuity of these documents of urban planning regulation²⁷.

The stated position appears to be justified since, when implementing territorial planning applicable to each functional zone, the functional purpose (residential, public and business, industrial, recreational, and other) is determined. At the same time, the rules of land use and development may specify the functional purpose of functional zones by dividing them into territorial zones. For example, within the boundaries of a residential functional zone, low-rise and medium-rise residential territorial zones can be defined. This conclusion is confirmed by judicial practice. In the Ruling of the Supreme Court of the Russian Federation dated October 23, 2013, No. 78-APG13-17²⁸, it is noted that within one functional zone there may be several territorial zones and subzones.

Thus, urban planning zoning is based on the established functional purpose of zones determined by approving documents of territorial planning, primarily the general plan of a municipal formation.

Taking into account the analysis of legislation, judicial practice and scientific literature, we believe that functional zoning does not directly determine but indirectly influences the determination of the legal regime of land through land use and development rules.

Urban planning zoning determines the legal regime of zones, while functional zoning affects the legal regime of zones mainly in order to ensure sustainable territorial development by achieving a balance between developed, to be developed and recreational areas, preserving public-use territories. Whereas ecological zoning is carried out with the aim of ensuring the preservation of natural territories, within the boundaries of which legislation prohibits or restricts certain types of economic activities.

A specific characteristic is possessed by the zoning of specially protected natural territories established within the boundaries of land categories of populated areas. With regard to land of populated areas, a town-planning regulation is established and, accordingly, town-planning zoning is carried out (part 6 of article 36 of the Town Planning Code of the Russian Federation). At the same time, according to this article, town-planning regulations are not established for specially protected natural territories (except for land of health resorts and curative areas). In our opinion, in the mentioned article of the Town Planning Code of the Russian Federation, land of specially protected natural territories refers to the corresponding category of land (chapter XVII of the Land Code of the Russian Federation) for which a town-planning regulation is not established. Whereas with regard to specially protected natural territories created on lands of other categories, this provision of part 6 of article 36 of the Town Planning Code of the Russian Federation does not apply.

As E.A. Galinskaya notes, although protected natural areas are often formed as one or several land plots, categories such as "area with special usage regime" or "zone" are more suitable for protected natural areas²⁹. This position appears to be justified, since protected natural areas include not only land plots but also water surface areas and airspace above them³⁰.

The legislation on protected natural areas provides for the establishment of protected natural areas of federal, regional or local significance, which, as a general rule, are respectively federal property, property of the subjects of the Russian Federation or property of municipal formations³¹.

At the same time, land use planning documents and functional zoning documents are approved by normative legal acts of local self-government bodies. Thus, it appears that the legal regime of specially protected natural territories of federal and regional significance cannot be determined on the basis of functional zoning or land use planning. The legal regime of such territories should be determined on the basis of ecological zoning, which may be carried out at the level of the federal government authorities as well as at the level of the government authorities of the subjects of the Russian Federation.

The principle of legislation on urban planning activities provides for the conduct of urban planning activities in compliance with the requirements for preserving cultural heritage objects and specially protected natural territories (paragraph 10 of Article 2 of the Urban Planning Code of the Russian Federation). Land and urban planning legislation allows for the determination of zones of specially protected areas within the boundaries of populated places³².

The above position is also confirmed by judicial practice. For example, as follows from the decision of the Federal Arbitration Court of the North Caucasus Circuit dated 14.03.2012 in case No. A63-1900/2011³³, the belonging of land of health resorts and curative areas to the category of land of populated places, as well as the absence on the territory of boundaries of first, second or third zones of sanitary (mountain-sanitary) protection does not change or cancel the status of specially protected lands established by normative acts, their restrictions in circulation and prohibition on privatization.

In the ruling of the Presidium of the Supreme Court of the Russian Federation dated June 16, 2009, No. 1882/09 in case No. A51-1334/20072-101, it was recognized that assigning the same area to lands of specially protected territories and lands of populated areas does not contradict legislation³⁴.

Thus, ecological zoning can be integrated into the structure of urban planning zoning through the determination of a corresponding territorial zone, whose legal regime may be defined during the implementation of ecological zoning, and the result of such zoning formalized in the charter of the relevant specially protected natural area.