Relationship Between Territorial Zoning and Classification of Land by Intended Use

In scientific literature, emphasis is placed on the important significance of dividing land into categories in determining the legal regime of land. As noted by S.A. Bogolyubov, the division of all lands within Russia into categories according to their intended use is an exclusive prerogative of the Russian state, a characteristic feature of Russian land legislation and lawmaking, and serves as the basis for defining the specific characteristics of the legal regimes of protection and utilization of land depending on its category and intended purpose. The stability of land's intended use, preservation above all of agricultural lands as irreplaceable, difficult to restore, and prevention of their unjustified transfer into less efficient forms of farming have always been a cornerstone principle of Russian state land and environmental policy and the implementation of land reforms¹.

At present, there is no consensus in scientific literature regarding the relationship between the classification of land into categories and territorial zoning. As noted by E.A. Galinovskaya, the institution of land categories under the Land Code of the Russian Federation (which, in essence, represents a form of land zoning across the territory of the Russian Federation as a whole) and the institution of legal territorial zoning under the Urban Planning Code of the Russian Federation do not have institutional contradictions and do not duplicate each other².

According to O.I. Krassov, territorial zoning in its most primitive form was borrowed from foreign experience. In the USA - the birthplace of zoning and in a number of countries this legal instrument is similar to the overall division of land into categories - the method of determining the legal regime of land used in our country. In reality, zoning practice has not yet gained widespread adoption³. Whereas I.F. Pankratov considered the division of land into categories as one of the types of ecological zoning of territory⁴.

The institutions of dividing land into categories and territorial zoning provide for the presence of a spatial element (boundaries). At the same time, as E.A. Galinovskaya notes, the absence of marked boundaries of land categories on site is a drawback not of the institution itself, but of the organization of state management in this area⁵.

Zoning of territories and classification of lands into categories have a similar character in the context of defining the legal regime of lands. Each category of land has its own separate legal regime, which is established by the Land Code of the Russian Federation. Direct determination of the legal regime of zones is provided within the framework of specific types of territorial zoning (for example, ecological zoning and urban planning zoning considered in this study). Ecological and urban planning zoning provide for the determination of the legal regime of ecological and territorial zones respectively.

Thus, the division of land into categories and the types of territorial zoning considered in this study (ecological zoning, functional zoning, urban planning zoning) have both spatial (boundaries) and legal (definition of the legal regime or impact on the legal regime of land) elements. In this sense, it appears particularly important to consider the relationship between such types of territorial zoning and the categorization of land in the context of defining the legal regime of land.

Some scholars emphasize the difficulties in distinguishing zoning regulations from land use classification norms. As noted by P.N. Pavlov, it is often difficult to differentiate between land category norms and territorial zoning norms. It has been heard that there is no need to introduce territorial zoning in the Russian Federation, since we have long been classifying lands into categories. In essence, the idea was put forward that categorizing land is equivalent to territorial zoning⁶.

At the same time, scientific literature proposes an approach aimed at determining the relationship between the institutions of land categorization and territorial zoning. According to E.A. Galinovskaya, in order to carry out work on improving land zoning, it would be sufficient, as we believe, to analyze the content of established land categories, establishing the relationship of this institution with permitted use. At the same time, it is proposed to determine the list of permitted uses based on the target purpose of specific land categories. Such a two-stage approach, where permitted use is established not instead of, but in accordance with the category of land, will not require radical changes in the legal regime of lands, corresponds to the vast areas of the Russian Federation, and will form the basis for implementing not only local policy primarily aimed at developing territories, but also federal state land policy requiring consideration of all types of land use⁷.

As O.I. Krassov notes, the classification of land into categories does not mean that all lands within a particular category must be used strictly in accordance with their designated purpose. This situation was characteristic not only of current but also previously applicable land legislation. Land legislation divides all land into certain categories, and at the same time allows for uses within these categories that do not conform to the designated purpose of the corresponding category. This is explained by the fact that the same category of land is often used simultaneously for various purposes. In order to resolve this contradiction, the term "permitted use of the land plot" was introduced in the Land Code⁸.

In addition, the division of land into categories is carried out in relation to the entire territory of the Russian Federation. The types of territorial zoning considered in this study (ecological zoning, functional zoning, urban planning zoning) have a more local character and are implemented with respect to specific territories provided for by legislation. Urban planning zoning is applied to all territories for which an urban planning regulation is established⁹. Functional zoning, within the framework of the territorial planning institution, is carried out in relation to the territories of municipal formations¹⁰. Ecological zoning is applied to specially protected natural areas¹¹.

Depending on the classification of land into certain categories, legislation determines the most general legal regime for lands. Based on the legal regime of territorial zones and ecological zones, legislation establishes a more detailed legal regime for lands. For example, regarding urban lands, it may be specified what kind of construction and development can be carried out within the boundaries of each territorial zone. Thus, determining the legal regime of lands based on specific types of land zoning is carried out in accordance with the legal regime of land categories and provides for clarification of such a legal regime. In this regard, it seems reasonable to define the relationship between the division of lands into categories and land zoning in the Land Code of the Russian Federation.

The issue of replacing the institution of classifying land by its intended use with the institution of urban planning zoning is currently controversial and topical. The Government of the Russian Federation adopted an order on June 15, 2010, which approved a plan of measures aimed at improving control and supervisory functions and optimizing the provision of state services in the field of urban development¹² (hereinafter - the Plan). Point 20 of the Plan provides for the abolition of land classification as an institution that duplicates the institutions of territorial planning and urban development zoning.

To achieve the stated objective, the Ministry of Economic Development of the Russian Federation (responsible implementer of the corresponding item of the Plan) developed a draft Federal Law "On Amending Certain Legislative Acts of the Russian Federation in Respect of Abolishing Certain Categories of Land and Declaring the Federal Law 'On Transferring Land or Land Plots from One Category to Another' Obsolete"¹³. In this draft law, among other things, it was proposed to replace certain categories of land with the institution of urban planning zoning (referred to as "territorial zoning" in the terminology of the aforementioned draft law¹⁴), and only three categories of land were proposed to be retained: 1) forest fund lands, 2) water fund lands, and 3) specially protected natural territories (Article 7 of the Land Code of the Russian Federation in the version of the draft law). This draft law was never adopted.

However, a new draft federal law has been prepared and submitted for consideration by the State Duma of the Federal Assembly of the Russian Federation, which provides for replacing the institution of dividing land into categories with the institution of territorial zoning¹⁵. This draft legislation envisages the exclusion from the legislation of the Russian Federation of the institution of classifying land by its intended use (and replacing this institution with the institution of territorial zoning), including the recognition as obsolete Federal Law No. 172-FZ dated December 21, 2004 "On the Reassignment of Land or Land Plots from One Category to Another"¹⁶ (hereinafter - Federal Law "On the Reassignment of Land or Land Plots from One Category to Another").

The issues related to the potential replacement of the institution of classifying land into categories based on their intended use with the zoning of territories are discussed in scientific literature. E.L. Minina, proposing a forecast of possible developments of legislation regarding the institution of land categorization and territorial zoning, concludes that the option of abolishing land categories is the least desirable. Not least because its implementation would require the most significant changes to legislation, including a fundamental revision of the Russian Federation Land Code, which establishes the legal regime of lands depending on their belonging to one or another category. This would require reissuing documents confirming rights to land plots, which, as experience shows, is delayed for a long period, creates obstacles in conducting business activities, imposes a heavy burden on citizens who hold rights to land plots, and contributes to the emergence of numerous conflicts in legal practice¹⁷.

According to E.A. Galinovskaya, the abolition of categories and the establishment of a legal regime for a large part of land by urban planning regulations (which are adopted by local self-government bodies) significantly reduces the level of legal regulation of land relations, which is currently primarily carried out by federal laws¹⁸. It is not denied that the problem has become urgent and needs to be addressed. However, the radical option of abolishing land categories cannot be considered as the only possible one¹⁹.

Commenting on point 20 of the Plan, M.V. Popov notes that this is perhaps the most revolutionary proposal, since the clear division of land into categories dates back to 1968, when the first Foundations of Land Legislation of the USSR and Union Republics were adopted. Many existing problems in the legal regulation of land relations are caused, among other things, by the parallel existence of two similar institutions - the designated purpose (land categories) and permitted use. Therefore, according to M.V. Popov, there is certainly a rational kernel in abolishing the division of land into categories. However, one can approach the realization of this idea only when there are complete documents on territorial planning at all three levels and land use and development rules in all municipal formations. It is also necessary to ensure state cadastral registration of land plots on the majority of the territory of the Russian Federation. Only then can the abolition of the division of land into categories yield a positive effect²⁰.

Whereas according to V.A. Burov, the abolition of land categories will violate the continuity in legislation and will not correct the shortcomings in the activities of public authorities²¹.

In scientific literature, emphasis is placed on the problems of the relationship between the institutions of land categorization and territorial zoning. As noted by I.E. Manylov, currently, in most cases, changing the permitted use of a land plot requires two decisions: 1) a decision by an authority to change the category of the land plot; 2) a decision on changing its permitted use. At the same time, the procedures and grounds for changing the category and permitted use of a land plot differ. Also different are the state authorities and local self-government bodies authorized to make decisions regarding changes in the category of a land plot and its permitted use, which creates difficulties for landowners²².

The indicated problem significantly complicates the realization of citizens' rights to use land plots. However, it is important to note that this problem can be resolved in court. As follows from the Decision of the Federal Arbitration Court of the Ural Circuit dated 03.06.2009 No. F09-3523/09-S1, an entrepreneur applied to the management of the Federal Agency for Cadastre of Real Estate (hereinafter - the management) with a statement requesting changes to documents of the state land cadaster in terms of specifying the category of the land plot owned by him on the right of ownership as "land of populated areas" instead of "agricultural land", and the type of permitted use of the land plot in accordance with established Land Use Rules, territorial zone (zone of open wholesale markets). In this same statement, the entrepreneur requested issuance of a cadastral plan of the land plot taking into account the changed data of the cadastral registration.

The management has decided to refuse the state cadastral registration of changes to the real estate object due to the failure of the entrepreneur to submit documents regarding the change in the category of the land plot, and it is recommended to submit a corresponding petition to the authority authorized to make decisions on changing the category of the land plot.

Since any type of permitted use from those specified in the zoning regulations can be selected by the land plot owner independently, without additional permits or coordination procedures, and information about primary and auxiliary types of permitted land use is entered into the cadastral plan pursuant to paragraph 2 of Article 7 of the Land Code of the Russian Federation and paragraph 4 of Article 37 of the Cadastral Code of the Russian Federation, the Federal Antimonopoly Service of the Urals Region satisfied the application for recognition of the management's actions as unlawful, consisting in adopting a decision to refuse cadastral registration of changes to the land plot object in terms of the category of the land plot and type of permitted use²³.

In light of the above ruling, it appears that the issue of the necessity to adopt two decisions (the authority's decision on changing the category of the land plot and the decision on changing its permitted use) in order to change the type of permitted use of the land plot and the capital construction object may be resolved through judicial proceedings. Thus, amending legislation in the part concerning the abolition of land categories is not the only possible way to resolve this issue. Understanding that resorting to court often leads to a lengthy resolution of disputes, it is reasonable to develop law enforcement practice ensuring the resolution of the aforementioned problem through administrative procedures without recourse to court.

V.A. Burkov notes that the argument put forward in favor of abolishing the institution of land categories as the main method for determining the legal regime of land plots is the greater diversity of permitted uses compared to the seven land categories established by land legislation. At the same time, it does not take into account that the number of categories has never been fixed; it increased as social relations developed (the latest land categories became water fund lands and specially protected areas), and in case such a need arises, there are no obstacles to doing so. Thus, the above argument is not sufficiently justified²⁴.

In addition, a certain flexibility of the institution of dividing land into categories based on their intended use is expressed in the possibility of transferring land or land plots from one category to another. The legal regulation of transferring land or land plots from one category to another is carried out within the framework of the Federal Law "On the Transfer of Land or Land Plots from One Category to Another." This Federal Law, among other things, provides for a mechanism for transferring agricultural land to other categories of land (including those categories of land for which urban planning regulations are established and applied).

Allowing for the possibility of changing the permitted use, legislation is based on the priority of preserving specially valuable lands and specially protected natural territories. Implementation of this principle is exemplified, for instance, by the possibility to change the permitted use of land plots classified as agricultural lands only after changing the category of the land. The validity of this approach is confirmed in judicial practice.

The court, when considering the case, established that, in accordance with paragraph 7 of Article 36 of the Land Code of the Russian Federation, it is possible to change the permitted use for agricultural lands only after changing the category of such land. Thus, failure to present evidence of zoning of the territory within which the land plot belonging to the applicant is located, with an established permitted use of the land plot, does not constitute a basis for satisfying the claims regarding the recognition of the authorized body's refusal to change the permitted use of the land plot from conducting peasant (farmer) farming to garden construction²⁵.

At the same time, the absence of zoning leads to the necessity of using land in accordance with its designated purpose. The FAS Moscow Region from 30.12.2009 No. KA-A41/12853-09 refused to satisfy the claims requesting the recognition of the decision by the Management of Rosreestr as unlawful and requiring it to make changes in the data of the State Land Cadastre, changing the permitted use from "for agricultural use" to "for dacha construction". The court noted that according to paragraph 2 of article 7 of the Land Code of the Russian Federation, land of agricultural purpose and other categories of land are used in accordance with their established purposes, and evidence of zoning of the territory within which the disputed land plot is located, with an established permitted use of land plots, were not presented to the court²⁶. The approach presented to changing the types of land use has important significance since land use zoning documents have not been prepared in all municipal formations.

As noted by P.N. Pavlov, without delving into the discussion of the expediency of maintaining the division of land into categories, it should be emphasized that in the legislation of countries with a developed market economy, the concept of "land category" does not exist. The only country with a market economy where land is divided into categories is Russia²⁷. According to E.A. Galinovskaya, the institution of land categories in the Russian Land Code is, in essence, a form of zoning of land throughout the territory of the Russian Federation²⁸. At the same time, zoning of land according to main types of use (especially when it concerns specially protected and valuable lands) is practiced worldwide²⁹.

As S.A. Bogolyubov notes, when modernizing any major law, one should not approach it from the perspective of "how could we possibly embellish it further," but rather from the position that "without certain changes to this law, we cannot proceed today"³⁰. As a result of replacing the institution of dividing land into categories with the institution of territorial zoning, legislation will undergo significant changes. However, it seems that such extensive legislative changes can be avoided.

2009.

2012.

2009.