The new protection zones around monuments are intended for the temporary protection of monuments for which preservation zones have not yet been established and which are not situated in the preservation zone of another monument (or within an integrated preservation zone) for the period until approval of the respective zones.
The Russian Federation has adopted and is slated to enact as of 3 October 2016 Federal Law No. 95-FZ dated 5 April 2016 "On the Introduction of Amendments to the Federal Law 'On the Objects of Cultural Heritage (Monuments of History and Culture) of the Peoples of the Russian Federation' and Article 15 of the Federal Law 'On the State Real Estate Cadastre'" (hereinafter – the "Federal Law").
The Federal Law introduces certain amendments to the Federal Law "On the Objects of Cultural Heritage (Monuments of History and Culture) of the Peoples of the Russian Federation" in terms of the establishment of new protection zones (hereinafter – "Protection Zones"). for objects of cultural heritage (hereinafter – "OCH"). Pursuant to the Federal Law, as of the date a monument or ensemble1 is added to the OCH Register and until approval of the preservation-zone plan2 for the concerned OCH, a Protection Zone is automatically established and becomes operative with respect to such monument or ensemble3.
Thus, Protection Zones are temporarily established for OCH that
have already been added to the Register, but with respect to which
the boundaries of the preservation zone have not yet been approved.
However, as is well known, there is nothing quite so permanent as
temporary; so, insofar as existing legislation does not envision a
timeframe for approval of the preservation-zone boundaries of an
OCH, it should be acknowledged that the effective period for the
Protection Zone of a specific OCH is de jure unlimited, as
is the case with the effective period for operating restrictions
within the territory of a Protection Zone, as indicated
Within the boundaries of a Protection Zone, operating restrictions are introduced that may be more stringent than those for the corresponding preservation zone:
- The construction of capital structures is prohibited, with the exception of the construction of utility lines.
- The reconstruction of capital structures entailing a modification of their existing parameters is prohibited (height, number of storeys, square meterage), with the exception of the reconstruction of utility lines.
For companies based in St. Petersburg, a positive aspect of the Federal Law is the fact that Protection Zones are not established in the event that a monument or ensemble is situated within the boundaries of an existing OCH or within the boundaries of an integrated protection zone set up for an OCH. This provision is particularly relevant for the Historic Center of St. Petersburg, a large part of which is located within an integrated preservation zone. The aforementioned protection-zone restrictions, therefore, are not applicable to buildings located in the respective territories in the Historic Center of St. Petersburg.
In the event that the boundaries of the OCH territory have been approved with respect to a given OCH, the Protection Zone amounts to:
- For a monument located within the limits of an inhabited locality – 100 meters from the outer boundaries of the territory of the respective monument, for a monument located beyond the limits of an inhabited locality – 200 meters from such boundaries
- For an ensemble located within the limits of an inhabited locality – 150 meters from the outer boundaries of the territory of the respective ensemble, for an ensemble located beyond the limits of an inhabited locality – 250 meters from such boundaries
In the event that no boundaries have been approved for the territory of a monument or ensemble, the Protection Zone amounts to:
- For a monument or ensemble located within the limits of an inhabited locality – 200 meters from the outer wall of the monument or from the general contour line of the ensemble, formed by connecting the outer markers of the ensemble's farthest-removed elements, including park grounds
- For a monument or ensemble located beyond the limits of an inhabited locality – 300 meters from the aforementioned boundaries
It should be noted that the Federal Law empowers the Committee on the State Control, Use and Protection of Monuments of History and Culture (KGIOP) to make decisions on establishing a Protection Zone of other dimensions. However, the procedure for adopting such decisions still requires further affirmation by the Government of the Russian Federation. Moreover, decisions on the approval of Protection Zones adopted prior to the entry into force of the Federal Law are deemed valid pursuant to the RF and RSFSR law.
It is important to bear in mind that the prohibition against construction/reconstruction mentioned above is not applicable in the event that the respective construction permit is issued prior to the entry into force of the Federal Law (that is, prior to 3 October 2016), in the event that said permit is extended, or in the event that there is a change in developer. Notably, the Federal Law does not specify whether the developer must merely obtain the required construction permit prior to 3 October, or whether he must also proceed with construction/reconstruction by that deadline. We cannot exclude the possibility that this particular provision of the Federal Law could be interpreted rather broadly by the courts. Thus, in the event that the land plot slated for development in the form of construction/reconstruction falls within the boundaries of a Protection Zone, in order to avoid the risks associated with being unable to proceed with construction, we recommend obtaining the required construction permit and commencing construction itself prior to 3 October 2016. In this connection, we recommend that developers start doing the appropriate legal due diligence right now to determine whether or not the land plot slated for development in the form of construction/reconstruction is located within an OCH Protection Zone.
1 Protection Zones are not established for objects of archaeological heritage, necropolises and burial sites located within the boundaries of necropolises, works of monumental art or monuments and ensembles located within the boundaries of a site, where said boundaries are established by the requirements and restrictions envisioned by applicable law for the territory of the respective site.
2 It should be noted that Decree of the Government of the Russian Federation No. 972 of 12 September 2015 "On the Approval of Regulation on the Preservation Zones for the Objects of Cultural Heritage (Monuments of History and Culture) of the Peoples of the Russian Federation and the Annulment of Certain Provisions of Regulatory Acts of the Government of the Russian Federation," governing the procedure for the approval of preservation-zone boundaries, land-use modes, and the requirements to town-planning regulations within the boundaries of such zones, does not contain a procedure for approving the plan for a Preservation Zone. In this connection, we presume that "approval of the preservation-zone plan" effectively means "approval of the preservation-zone boundaries" of the respective OCH.
3 With respect to monuments and ensembles previously added to the Register, the provisions of the Federal Law on Protection Zones apply from the date the Federal Law enters into force.
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