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Relationship between Land Use Zoning and the Establishment of Zones with Special Land Use Conditions

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Table of contents: Значение зонирования территорий при определении правового режима земель

The current legislation of the Russian Federation does not contain a definition of the term "zones with special conditions for land use." However, references to zones with special conditions for land use, or to certain types of such zones, are present in many federal laws1 and subordinate normative legal acts2.

In scientific literature, a definition of a concept similar in content to "protective zone" is proposed. According to O.A. Zolotova, a protective zone is an area with special conditions for the use of territories, representing a strip of land around the protected object, established in order to protect the environment, the lives and health of citizens and/or the protected object from negative impact. Within the boundaries of this zone, normatively established restrictions on economic and other activities are set, including the use of land plots and their parts, as well as obligations to maintain land plots and their parts within the protective zone in a condition corresponding to the purpose of its establishment3. The given definition allows identifying a similar nature of protective zones and zones defined on the basis of types of land zoning considered in this study.

In scientific literature, emphasis is placed on legal issues related to protected zones. As noted by N.V. Kichigin, one of the problems is that many existing provisions regarding protected zones no longer correspond to today's realities and require changes and additions taking into account economic development, social relations, property rights, and should be brought in line with modern legislation. Sometimes provisions concerning protected zones are not revised for decades4.

In legislation, open lists of zones with special land use conditions are provided5. However, it is not possible to determine from these lists the impact of zones with special land use conditions on the legal regime of lands or to distinguish the establishment of such zones from zones defined based on the types of territorial zoning considered in this study. Thus, it is necessary to consider legislative provisions and scholars' positions regarding individual zones with special land use conditions.

M.M. Brinchuk considers the establishment of water protection zones6 as part of environmental protection measures7. At the same time, the establishment of water protection zones does not result in the expropriation of land plots from landowners, landholders, or land users, nor does it impose a ban on transactions with land plots, except in cases provided for by law. However, landowners, landholders, and land users whose lands are located within water protection zones and coastal protective strips must comply with the established usage regime. Persons responsible for violating the usage regime of territories of water protection zones and coastal protective strips bear responsibility based on current legislation8.

According to O.N. Kolesova, water protection zones are areas with special land use conditions that serve as a basis for imposing restrictions on land rights. These restrictions arise under Article 65 of the Water Code of the Russian Federation, which also defines their content and must be registered in the cadastre in accordance with the legislation of the Russian Federation. Within the water protection zone, protective shore strips and coastal strips are identified, the boundaries of which must be registered in the cadastre. The boundaries of a land plot cannot cross the boundaries of a coastal strip. State registration of a restriction on the right associated with the location of a land plot within a water protection zone is not required9.

Individual provisions regarding sanitary protection zones are provided by SanPiN 2.2.1/2.1.1.1200-03. According to this SanPiN, a sanitary protection zone is considered as a protective barrier that ensures the safety of the population during the operation of an object10. This provision is further clarified in scientific literature11. This SanPiN also defines specific restrictions on the use of land plots located within the boundaries of sanitary protection zones12.

In the project of a sanitary protection zone, the following should be defined: 1) - the size and boundaries of the sanitary protection zone; 2) measures to protect the population from the impact of harmful chemical impurities in the atmospheric air and physical effects; 3) functional zoning of the territory of the sanitary protection zone and its usage regime (paragraph 3.10 of SanPiN 2.2.1/2.1.1.1200-03).

The legislation also provides for the definition of green zones13 and forest-park zones14. According to M.M. Brinchuk, the main element of the legal regime of green zones is the prohibition on economic and other activities within these areas that have a negative impact and hinder their functions of ecological, sanitary-hygienic, and recreational purpose15.

As noted by N.V. Kichigin, legislation should more clearly distinguish urban forests, forest-park zones and green zones in terms of their functional purpose and legal regime in order to avoid duplication of the legal regimes for these territories16. However, according to O.A. Zolotova, the regime of green and forest-park zones and the procedure for their establishment are practically identical, although these territories differ functionally17.

E.K. Trutnev and L.E. Bandorin propose a distinction between sanitary protection zones and water protection zones, noting that "sanitary protection and water protection zones are intended to prevent or reduce harmful effects, in the first case - on other objects, in the second case - on the source of the zone establishment. Preventing harmful effects means preventing the placement of new objects."18 D.F. Abuzyarova also holds a similar position19. Whereas O.A. Zolotova proposes a more detailed classification of protective zones20.

In order to ensure the preservation of a cultural heritage object in its historical environment, on the territory adjacent to it, zones for the protection of cultural heritage objects are established: the protective zone21, the zoning regulation area for construction and economic activities22, and the protected natural landscape zone23 (paragraph 1 of Article 34 of Federal Law No. 73-FZ dated June 25, 2002 "On Cultural Heritage Objects (Monuments of History and Culture) of the Peoples of the Russian Federation"24). The aforementioned zones with special conditions for the use of territories also have boundaries and a legal regime25.

In scientific literature, there is no uniformity regarding the relationship between territorial zoning and the establishment of special-use land zones. For example, E.K. Trutnev includes the establishment of special-use land zones as part of zoning26. A similar position is held by O.M. Kozir'27. On the other hand, according to N.L. Lisina, territorial zoning should be distinguished from special restriction zones28. It is important to note that special-use land zones, like territorial zones, are objects of land management29.

Considering the above, it can be concluded that special-use land zones and zones defined based on the types of territorial zoning considered in this study have both spatial (definition of zone boundaries) and legal (definition of the legal regime of lands or impact on the legal regime of lands) elements.

However, each type of land zoning considered in the present study is applied to a territory not tied to specific objects (for example, the territory of a municipal formation, a specially protected natural area), which in turn serves as an object for the corresponding type of land zoning (has a comprehensive character). In contrast, zones with special conditions for land use are established in relation to territories adjacent to specific objects of such zone establishment (for example, an industrial enterprise, a river) and have a local character.

According to O.A. Zolotova, protective zones are established in relation to land plots belonging to any category of land, any type of permitted use, and regardless of the form of ownership of such land plots30. As noted by N.V. Kichigin, special-use zones established in accordance with Russian Federation legislation may not coincide with the boundaries of territorial zones, but may overlap various types of territorial zones defined in Article 35 of the Land Code of the Russian Federation31.

Issues arising from the overlap of zones with special land use conditions and territorial zones often become subjects of judicial proceedings. As an example, consider the Appeal Decision of the Supreme Court of the Republic of Bashkortostan dated 27.09.2012 in case No. 33-9468/12. In the factual part of this Decision, it is noted that N. and Sh. filed a lawsuit against the city administration seeking to terminate the lease agreement, to recognize as unlawful the refusal by the Land Resources Management Department of the city administration to provide a land plot into ownership, to compel the conclusion of a purchase and sale agreement for the land plot, and to calculate its redemption price.

The plaintiffs supported their claims by stating that, based on the inheritance certificates, each of them is the owner of 1/2 share of the building. The land plot located under this building has been leased to them based on a lease agreement. The defendant refused to transfer ownership of this land plot because it is located in the second sanitary protection zone of water bodies.

In light of this, the plaintiffs requested that the lease agreement for the land plot be terminated, that the refusal by the Land Resources Management Office of the city administration be declared unlawful, and that the city administration be ordered to enter into a purchase agreement with the plaintiffs and calculate the compensation price for the land plot.

During the court session, it was established that the disputed land plot: 1) is located within the territorial zone: "Residential zone, index Ж-1"; 2) fully falls within the zone: "Sanitary protection zone of water intakes, II zone"; 3) fully falls within the zone: "Sanitary and protective zone from an industrial area".

Taking into account that the boundaries of the second zone of sanitary protection for watercourses and water bodies are determined depending on natural, climatic, and hydrological conditions, i.e., they are established in each specific case according to data from the real estate cadastre and the Project "Sanitary-Topographical Survey of Zones of Sanitary Protection of Water Supply Facilities and Sources of Drinking and Domestic Water Supply," approved by a decree of the Cabinet of Ministers, the disputed land plot is located within the boundaries of the territory of the second zone of sanitary protection of drinking and domestic water supply sources in the city. Therefore, according to the aforementioned provisions of the law, it cannot be granted into private ownership.

For this reason, the legal grounds for granting the claimants ownership of the disputed land plot were absent before the court of first instance; therefore, the court's decision cannot be considered lawful and justified and must be overturned32.

In the example provided, there is a collision between the legal regimes of the territorial zone and the special use conditions zone. However, the court considered the case based on the priority of the legal regime of the special use conditions zone over the legal regime of the territorial zone. Such an approach appears to be justified.

At the same time, it is important to observe the procedure for establishing zones with special land use conditions. For example, as follows from the Decision of the North-Western Circuit Arbitration Court dated 17.10.2012 in case No. A21-6274/2011, on 13.11.2009, LLC "T." obtained a permit for the construction of a multi-apartment building. By decision of the City K.'s District Council dated 29.06.2009 No. 146, the Land Use and Construction Rules of the City District "City K." were approved.

The land use and development rules of the city district "City K." include as Appendix No. 1 a zoning map that establishes the boundaries of territorial zones. According to this map, the land plot provided to LLC "T." for construction purposes by lease is entirely located within the territorial zone Zh-2. This zone is designated for the construction of medium-rise multi-family residential buildings with 5 - 8 floors; it allows for the placement of social and cultural and domestic service facilities primarily of local significance, as well as other objects in accordance with urban planning regulations.

In accordance with the map of zones with special land use conditions based on the protection conditions of cultural heritage objects, which is Appendix No. 2 to the Land Use and Construction Rules, the eastern part of the land plot has been assigned to a zone with special land use conditions based on the protection conditions of cultural heritage objects - the regulation of economic activities zone. In this zone, according to the Land Use and Construction Rules, selective new construction of buildings close to the historical type of development is allowed, while new multi-story and multi-apartment construction is prohibited.

The court established and the case materials confirm that the Government of K. region did not approve the boundaries of protected zones for the cultural heritage object, or land use regimes within these protected zones, as indicated in the disputed part of the Land Use and Construction Rules.

Under such circumstances, the court rightly concluded that the Land Use and Construction Rules in the part contested by the Company do not comply with laws having higher legal force.

Finding that the application of the Land Use and Development Rules in the contested part creates obstacles for the entrepreneurial activities of JSC "T.", which are related to the construction of residential buildings on the land plot provided to JSC "T." for this purpose, the court rightly recognized the disputed provisions of this normative legal act as invalid33.

In scientific literature, the relationship between the legal regime of protective zones, land categories, and types of permitted land use is considered. As noted by O.A. Zolotova, the legal regime of protected zone lands correlates with the category and type of permitted land use. This is expressed in the establishment of additional restrictions within the boundaries of the protective zone, which are required by the legal regime of the land plot34.

In our opinion, in order to accurately determine the legal regime of land, it is necessary to ensure a comprehensive depiction of the boundaries of zones with special territorial use conditions in land use and development regulations. To depict the boundaries of zones with special territorial use conditions established at the time of preparing the draft land use and development regulations, legislation should provide for a procedure for coordinating the draft of such regulations with state authorities and local self-government bodies whose competence includes establishing zones with special territorial use conditions, specifically in terms of depicting such zones in land use and development regulations.

2001. No. 26. Article 2582).

  1. See, for example, Federal Law No. 7-FZ of January 10, 2002 "On Environmental Protection" // RSZ RF. 2002. No. 2. Art. 133, ZK RF, VK RF, Forest Code of the Russian Federation dated December 4, 2006 No. 200-FZ // RSZ RF. 2006. No. 50. Art. 5278, Federal Law No. 52-FZ of March 30, 1999 "On Sanitary and Epidemiological Well-being of the Population" // RSZ RF. 1999. No. 14. Art. 1650, Federal Law No. 221-FZ of July 24, 2007 "On the State Cadastre of Real Estate" // RSZ RF. 2007. No. 31. Art. 4017, Federal Law No. 166-FZ of December 20, 2004 "On Fishing and Conservation of Aquatic Biological Resources" // RSZ RF. 2004. No. 52. Art. 5270. ↩

  2. See, for example, the Regulation on Determining Functional Zones in Forest Park Areas, Area and Boundaries of Forest Park Areas, Green Zones, Government Decree of the Russian Federation dated January 10, 2009 No. 17 "On Approval of Rules for Establishing on the Ground the Boundaries of Water Protection Zones and Shore Protective Strips of Water Objects" // RSZ RF. 2009. No. 3. Art. 415, Government Decree of the Russian Federation dated October 7, 1996 No. 1170 "On Approval of the Regulation on Protection Zones and Protection of Geodetic Points within the Territory of the Russian Federation" // RSZ RF. 1996. No. 42. Art. 4803, Government Decree of the Russian Federation dated February 27, 2004 No. 112 "On Use of Land Subject to Radioactive and Chemical Contamination, Conducting Land Improvement and Cultural-Technical Works on Them, Establishing Protection Zones and Preserving Objects Located on These Lands" // RSZ RF. 2004. No. 10. Art. 866. Order of Rosrybvykhod dated February 11, 2010 No. 86 "On Approval of the Procedure for Recognizing Zones with Special Conditions for Territorial Use as Fish Protection Zones and Fishery Reserve Zones" // Rossiyskaya Gazeta from 14.04.2010 (No. 78). ↩

  3. Zolotova O. A. Legal regime of land in protective zones: abstract of dissertation ... candidate of legal sciences. Moscow, 2013. Pp. 7–8. ↩

  4. Bogolyubov S. A., Kichigin N. V. Legislative regulation of the activities of federal executive authorities in ensuring environmental safety. Moscow, 2007. P. 127. ↩

  5. According to paragraph 3 of Article 44 of the Federal Law dated January 10, 2002, No. 7-FZ "On Environmental Protection," in order to protect the environment of urban and rural settlements, protective and conservation zones are established, including sanitary protection zones, green areas, green zones, forest-park zones, and other zones withdrawn from intensive economic use with limited nature management regime. According to paragraph 4 of Article 1 of the Land Code of the Russian Federation, zones with special conditions for land use - protective zones, sanitary protection zones, zones of protection of cultural heritage objects (monuments of history and culture) of the peoples of the Russian Federation, water conservation zones, flooding and inundation zones, sanitary protection zones of sources of drinking and household water supply, protected object zones, and other zones established in accordance with the legislation of the Russian Federation. ↩

  6. According to Article 65 of the Water Code of the Russian Federation, water protection zones are territories adjacent to the shoreline of seas, rivers, streams, canals, lakes, reservoirs, on which a special regime for carrying out economic and other activities is established in order to prevent pollution, littering, siltation of these water bodies, depletion of their waters, as well as preservation of the habitat of aquatic biological resources and other objects of animal and plant world. Within the boundaries of water protection zones, shore protective strips are established, on the territories of which additional restrictions on economic and other activities are introduced. ↩

  7. According to M.M. Brinchuk, a water protection zone is created as part of nature conservation measures, as well as measures for improving the hydrological regime and technical condition, landscaping of water bodies and their adjacent territories (Brinchuk M.M. Environmental Law: textbook. Moscow, 2010. P. 515). ↩

  8. Sivakov D. O. Water Protection Zone Regime: Protection of Waters and Forests // Legislation and Economy. 2008. ↩

  9. Kolesova O. N. Legal Regime of Water Protection Zones // Journal of Russian Law. 2012. Pp. 50–57. ↩

  10. From paragraph 2.1 of SanPiN 2.2.1/2.1.1.1200-03 it follows that, in order to ensure the safety of the population and in accordance with Federal Law No. 52-FZ dated March 30, 1999 "On Sanitary and Epidemiological Well-being of the Population," special territories with a special usage regime are established around objects and productions that are sources of impact on the living environment and human health. The size of these territories ensures the reduction of pollution impact on atmospheric air (chemical, biological, physical) to levels set by hygienic standards, and for enterprises of I and II hazard classes - both to levels set by hygienic standards and to acceptable risk levels for public health. In terms of its functional purpose, the sanitary protection zone acts as a protective barrier ensuring population safety during normal operation of the facility. ↩

  11. For example, according to M.M. Brinchuk, sanitary protection zones are intended to create a barrier between residential areas and enterprises and other objects that are sources of harmful chemical, physical and biological effects on the environment (Brinchuk M.M. Ecological Law: textbook. Moscow, 2010. P. 511). ↩

  12. In the sanitary protection zone it is not allowed to locate: residential areas, including individual houses, landscape-recreational zones, recreation areas, resort territories, sanatoriums and rest homes, territories of gardening societies and cottage construction, collective or individual garden and orchard plots, as well as other territories with regulated indicators of living environment quality; sports facilities, children's playgrounds, educational and children's institutions, public health prevention and wellness institutions (paragraph 5.1 of SanPiN 2.2.1/2.1.1.1200-03). ↩

  13. Green zones are established in order to ensure protection of the population from adverse natural and anthropogenic impacts, preservation and improvement of the environment (paragraph 3 of the Regulation on the determination of functional zones in forest-park areas, the area and boundaries of forest-park areas, green zones). ↩

  14. Forest-park areas are established in order to organize leisure activities for the population, preserve the sanitary-hygienic, health-improving and aesthetic value of natural landscapes (paragraph 2 of the Regulation on the determination of functional zones in forest-park areas, the area and boundaries of forest-park areas, green zones). ↩

  15. Brinchuk M. M. Environmental Law: textbook. Moscow, 2010. Pp. 510–511. ↩

  16. Use and protection of forests: the problem of implementing legislation: collection of articles / ed. by E.L. Minina. Moscow, 2012. P. 116. ↩

  17. Zelentova O. A. Green and forest-park zones // Legal regulation of the use and protection of forests: Collection of papers from a scientific-practical conference. M.: Higher Education Institution "Moscow State University of Forestry", 2011. P. 201. ↩

  18. Trutnev E. K., Bandorin L. E. Commentary on the Urban Planning Code of the Russian Federation. M., 2010. ↩

  19. Protective zones are established both for the purpose of protecting objects under state protection and ensuring normal conditions for their operation, as well as for protecting the environment from adverse effects emanating from these objects (Abuzyarova D. F. Roadside strips of highways as areas with special usage conditions // Lawyer. 2010. No. 6. P. 37 - 39.). ↩

  20. For the purposes of determining typological and specific characteristics of protected zones on legal grounds and studying their legal regimes, taking into account whether the object of a protected zone is natural or anthropogenic, O.A. Zolotova distinguishes two types of protected zones. In terms of purpose of establishment, protective zones of the first type are divided into two groups: protective zones established for the purpose of protecting objects of protected zones, and protective zones established with the aim of protecting the environment, life and health of the population; of the second type - into three groups: protective zones established for the purpose of protecting objects of protected zones, protective zones established with the aim of protecting the environment, life and health of the population, and protective zones established both for the protection of the environment and the object of the protected zone (Zolotova O.A. Legal regime of land of protected zones: author's abstract of dissertation ... candidate of legal sciences. Moscow, 2013. P. 9.). ↩

  21. Protective zone - an area within which, in order to ensure the preservation of a cultural heritage object in its historical landscape environment, a special land use regime is established, limiting economic activities and prohibiting construction, except for the application of special measures aimed at preserving and regenerating the historic-urban or natural environment of the cultural heritage object (first paragraph of point 2 of article 34 of Federal Law No. 73-FZ dated June 25, 2002 "On Cultural Heritage Objects (Monuments of History and Culture) of the Peoples of the Russian Federation"). ↩

  22. Zone of regulation of construction and economic activities - territory, within which the mode of land use is established, limiting construction and economic activities, requirements for reconstruction of existing buildings and structures are determined (second paragraph of point 2 of article 34 of the Federal Law dated 25.06.2002 No. 73-FZ "On Objects of Cultural Heritage (Monuments of History and Culture) of the Peoples of the Russian Federation"). ↩

  23. Protected natural landscape area - a territory within which land use regimes are established that prohibit or restrict economic activities, construction and reconstruction of existing buildings and structures in order to preserve (regenerate) the natural landscape, including river valleys, water bodies, forests and open spaces compositionally linked with cultural heritage objects (third paragraph of point 2 of article 34 of Federal Law No. 73-FZ dated June 25, 2002 "On Objects of Cultural Heritage (Monuments of History and Culture) of the Peoples of the Russian Federation"). ↩

  24. Federal Law No. 73-FZ dated 2002 "On Objects of Cultural Heritage (Monuments of History and Culture) of the Peoples of the Russian Federation" // RSZ RF. 2002. No. 26. Art. 2519. ↩

  25. The boundaries of the protected zones of cultural heritage objects (excluding the boundaries of the protected zones of especially valuable cultural heritage objects of the peoples of the Russian Federation and cultural heritage objects included in the World Heritage List), land use regimes, and urban planning regulations within these zones are approved on the basis of the project for the protected zones of a cultural heritage object concerning federal-level cultural heritage objects by the state authority of the subject of the Russian Federation in coordination with the federal authority responsible for the protection of cultural heritage objects; in relation to regional-level cultural heritage objects and local (municipal) level cultural heritage objects, they are approved in accordance with the laws of the subjects of the Russian Federation (paragraph 3 of Article 34 of Federal Law No. 73-FZ dated June 25, 2002 "On Cultural Heritage Objects (Monuments of History and Culture) of the Peoples of the Russian Federation"). ↩

  26. In the opinion of E.K. Trutnev, "zoning" is a general term encompassing various types and results of corresponding actions. For example, zoning is practiced at the stage of territorial development planning with fixation of general restrictions and representations about future land use (without establishing legally significant regulations), there exists zoning with establishment of legally significant regulations for property use ("legal zoning"), there is zoning with establishment of boundaries of action of relevant restrictions (water protection zones, sanitary protection zones, conservation zones for monuments, etc.), there is functional and construction zoning within parts of territories and individual land plots, functional zoning at the level of different floors of planned buildings, etc. (Legal Zoning of the City. Introduction to Issues of Urban Regulation in Market Conditions / Ed. by E.K. Trutnev. Moscow, 2002. P. 7.). ↩

  27. As noted by O.M. Kozyr', zoning of territory as a method for establishing restrictions on land use was previously applied in Russian legislation not only with regard to settlement lands, including the establishment of zones for the protection of historical and cultural monuments, historical and cultural complexes and objects, specially protected natural territories, including sanitary (mountain-sanitary) protection zones; sanitary, protective and sanitary-protective zones; water protection zones and coastal protective strips; sanitary protection zones of water supply sources; zones of emergency ecological situations and ecological disasters and other zones in accordance with current sanitary, water, environmental legislation, legislation on the protection of historical and cultural monuments (Volkov G.A., Golichenkov A.K., Kozyr' O.M. Post-article scientific and practical commentary on the Land Code of the Russian Federation / Prepared for the "Consultant Plus" system. 2002.). ↩

  28. Lisina N. L. Op. cit. P. 164. P. 164. ↩

  29. Land management objects - territories of the subjects of the Russian Federation, territories of municipal formations, territories of populated places, territorial zones, zones with special conditions for land use, as well as parts of the above-mentioned territories and zones (third paragraph of article 1 of the Federal Law No. 78-FZ dated 18.06.2001 "On Land Management" // RSFSR. ↩

  30. Protective zones are located on land plots of any categories and types of permitted use, belonging to the ownership, possession and use of the Russian Federation, subjects of the Russian Federation, municipal formations, physical and legal entities (Zolotova O.A. Legal regime of protective zone lands: author's abstract of dissertation ... candidate of legal sciences. Moscow, 2013. P. 3). ↩

  31. Commentary on the Urban Planning Code of the Russian Federation (article-by-article) / ed. by S.A. Bogolyubov. Moscow, 2012. P. 179. ↩

  32. Appeal court ruling of the Supreme Court of the Republic of Bashkortostan dated 27.09.2012 in case No. 33-9468/12. The document was not published. Access mode: «Consultant Plus» system. ↩

  33. Ruling of the Federal Arbitration Court of the North-Western District dated 17.10.2012 in case No. A21-6274/2011. // Official website of the Higher Arbitration Court of the Russian Federation. [Electronic resource]. URL: The document was not published. Access mode: «Consultant Plus» system. http://kad.arbitr.ru/PdfDocument/00463dbb-8f0a-4188-9df7-fa4b7f0eb4da/A21-6274-2011_20121017_Postanovlenie%20kassacii.pdf ↩

  34. Zolotova O. A. Legal regime of land in protective zones: abstract of dissertation ... candidate of legal sciences. Moscow, 2013. P. 9. ↩

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Соотношение зонирования территорий и установления зон с особыми условиями использования территорий

Alexey Borisov
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