Approval of the new General Plan of Kyiv depends on the courts
The Administrative Court of Appeal may soon put an end to the case on appealing against the actions of the Kyiv City State Administration on the development of a new Master Plan for Kyiv. In the relevant proceedings, an individual Igor Gets is trying to prove (so far without success) that the city authorities do not have the right to prepare such a document for approval, because the Verkhovna Rada has long made all General Plans termless. Most likely, the leadership of the capital wins in this dispute, since the decision of the Kyiv City Council No. 262/262 of September 18, 2008 “On the development of a new Master Plan for the Development of Kyiv and its Suburban Area until 2025” was adopted in accordance with the requirements of the current one at the time of its adoption. legislation and no one in court appealed. This, in turn, will allow the Kyiv City State Administration to use a positive court decision as a precedent in order to quickly reach the approval of the Chernovetsky-Klitschko General Plan and defeat opponents who will then try to appeal this document in court.
As became known KVas of March 7, 2023 scheduled meeting of the Sixth Administrative Court of Appeal in case No. 640/8400/21.
Recall that within the framework of this proceeding, an individual Igor Gets demands from the servants of Themis to recognize the actions of the Kyiv City State Administration as illegal, related to the development of a draft new General Plan of Kyiv, and also to oblige officials of the capital’s mayor’s office to refrain from preparing this document. In addition, within the framework of this case, the plaintiff put forward demands for the recognition of illegal inaction of the Cabinet of Ministers of Ukraine, which, according to Igor Gets, is expressed in the failure to respond to the facts of these illegal actions by the Kyiv City State Administration. The defendants in this proceeding are the capital city state administration and the Cabinet of Ministers, respectively.
More July 6, 2022 District Administrative Court of Kyiv (OASK, liquidated in December last year. — KV) completely refused Igor Getsyu in meeting his demands. In this regard, the plaintiff filed an appeal, which should be considered by the aforementioned administrative court of appeal.
General plan of Kyiv. On the consideration of the case and the decision of the OASK
As reported in the court decision dated July 6, 2022, in January 2021, Igor Gets addressed the mayor of Kyiv and the head of the Kyiv City State Administration Vitaliy Klitschko with a letter, in which he reported a violation of the current legislation related to the development of a draft new General Plan of Kyiv. What violations were discussed, the court document does not specify. But it can be assumed that the future plaintiff demanded to stop the development of this document due to the fact that the current Master Plan of the capital (approved decision City Council No. 370/1804 dated March 28, 2002), according to the legislation of Ukraine, is unlimited, and therefore the city government does not have the right to develop the “second” General Plan of Kyiv. This version of KV is explained by the fact that further this argument will be virtually the only one in Getz’s claim.
In response to his appeal, this citizen received a letter from the Department of Urban Planning and Architecture of the KSCA, in which officials only reported that work on the draft General Plan is still ongoing, it is being brought into line with changes in legislation in the field of urban planning, construction and other state standards, standards. and rules, etc.
In March 2021, Igor Gets complained about the actions of officials of the Kyiv City State Administration in a written appeal to the Cabinet of Ministers of Ukraine – he pointed out that the officials of the capital’s mayor’s office evaded “implementation of urgent measures”, which he reported in a letter to the mayor of Kyiv.
The Cabinet of Ministers, in turn, sent Igor Gets’ appeal to the Ministry of Communities and Territories of Ukraine, the Kyiv City State Administration and the State Architectural and Construction Inspectorate (GAI, liquidated. – KV). Such a reaction on the part of the Cabinet of Ministers did not satisfy the citizen, and therefore in the future he turned to the OASK with the above claim. Already at the beginning of April 2021, this court opened the relevant proceedings.
In support of his claims, Igor Gets pointed out that the Kyiv City State Administration did not take immediate measures to stop illegal actions in the development of the General Plan of Kyiv. And the Cabinet of Ministers, according to the plaintiff, did not take measures to eliminate shortcomings in the work of the executive authority, which is the Kyiv City State Administration, and “avoided directing and coordinating the activities of the indicated local administration to ensure the proper implementation of the powers granted to it in the relevant territory.”
At the same time, Igor Gets said that the Cabinet of Ministers groundlessly transferred his appeal to other bodies for consideration – they say that he did not ask officials to do this, because these state structures, in accordance with the law, “are not empowered to exercise control over the activities of local executive authorities.” All this, according to the plaintiff, violated his right to participate in the management of public affairs, guaranteed to him by the Constitution of Ukraine, and the right to receive such an intangible benefit as “the proper execution of the KSCA and the Cabinet of Ministers of their powers”.
As noted above, the main and, in fact, the only argument regarding the illegality of the development of the new General Plan, Igor Gets called precisely the fact that such documents are indefinite – this is provided for by the Law of Ukraine “On the regulation of urban planning”, which was approved by the Verkhovna Rada in 2011. In this regard, according to the plaintiff, the development of a “new” General Plan of the capital since March 2011 is illegal.
The KSCA did not agree with such claims. The defendant’s lawyers noted that the development of the “new” General Plan by the capital city state administration is legal, because there is a corresponding instruction from the Kyiv City Council, which was provided for by decision No. 262/262 of September 18, 2008. The need for such instructions from local governments, they say, is a requirement of the same Law of Ukraine “On the regulation of urban planning activities“. At the same time, the Kyiv City State Administration reported that the above decision was made in accordance with the requirements of the legislation in force at the time of its adoption, that is, even before the Verkhovna Rada made the General Plans termless.
In turn, the Cabinet of Ministers of Ukraine pointed out that the forwarding of Igor Gets’ appeal is legal. The officials explained their position by the fact that the question of clarifying the legislation on urban development and the development of the general plan is within the powers of the above three bodies. In this regard, according to representatives of the Cabinet of Ministers, “claims for recognition of inaction as illegal and the arguments by which the plaintiff substantiates them are not consistent with the provisions of the legislation of Ukraine, are far-fetched, unreasonable and unfounded, and therefore should be left without satisfaction.” .
In addition, both the lawyers of the capital city state administration and the lawyers of the Cabinet of Ministers during the trial of the case argued that the development of a new General Plan of Kyiv in no way violates the interests of Igor Gets, because he lives in another locality – in the city of Sumy. It is noteworthy that in response to such a remark, the plaintiff said that since November 2019 he has been living “in two cities” – in Kyiv and Sumy.
General plan of Kyiv: massacre in the courts // Screenshot by the decision of the UAC of July 6, 2022
In the end, the board of courts of the OASK decided to completely refuse Igor Gets to satisfy his claim. Among the reasons for the refusal, the ministers of Themis indicated the fact that the decision of the Kyiv City Council No. 262/262 of September 18, 2008 “On the development of a new Master Plan for the Development of Kyiv and its Suburban Area until 2025” was adopted in accordance with the requirements of the legislation in force at the time of its adoption . In addition, the OASK noted that the said decision was not canceled by the city council itself, was not declared invalid in court, and therefore is currently in effect. As for the claims of the plaintiff against the Cabinet of Ministers, then, as, in particular, it is indicated in the court decision, “for the recognition of inaction as illegal, it is not enough just one fact of improper or untimely performance of mandatory actions.”
Possible consequences
Experts interviewed by HF expressed their concern about this course of events.
So, the capital’s lawyer and human rights activist Oleksandr Dyadyuk believes that the final victory of the Kyiv City State Administration in court in this case can better help the leadership of the capital come to the approval of the new General Plan “Chernovetsky-Klitschko” and defeat opponents if this document is later appealed in court.
“The plaintiff’s reference to the legislation on the perpetuity of the General Plan will not help to appeal against the actions of the Kyiv City State Administration. For example, laws are also adopted by the Verkhovna Rada indefinitely, but this cannot prevent the parliament from amending them, canceling them, or adopting new laws. It should be understood that formally the KSCA only fulfills the decision of the Kyiv City Council of 2008 on the development of a new General Plan. It would be better to challenge this decision. I don’t see any prospects in this case. Moreover, if someone wants to really appeal against the new General Plan of Kyiv, then in the relevant court case the Kyiv City Council will be able to refer to the court decision in this case, which has a prejudicial value and in which the circumstances were established that the actions of the authorities were lawful”, — said KV Alexander Dyadyuk.
A similar opinion is shared by the corresponding member of the Ukrainian Academy of Architecture Viktor Gleba. All the processes that preceded and accompanied the development of this document are familiar to him: in 2001-2008, he worked in senior positions in the city communal enterprise “Center for Urban Planning and Architecture of Kyiv” and the Department of Urban Planning and Architecture of the Kyiv City State Administration (including the deputy chief architect of the capital). 2008-2016 – Deputy Architect of the Kyiv region.
According to Viktor Gleba, the draft of the new General Plan of Kyiv should be criticized and appealed, but for other reasons – because of a number of violations, including in the development procedure.
When developing the draft of the new General Plan, legislative norms, rules, State Building Regulations (DBN) on planning and development are ignored, a public examination has not been carried out. As deputy chief architect of the Kiev region, I was a secretary at the city council of the Kyiv region, which considered the “new General Plan” of the capital. And then I wrote a protocol for 6 pages of comments on the draft Master Plan of Kyiv and the development of its suburban area until 2025. But already, it seems, in 2020, Vitaliy Klitschko presented a document called the General Plan-2030, and then, in 2021, if I’m not mistaken, the mayor of Kyiv already proposed the General Plan for a period up to 2040,” Viktor Gleba told KV.
Why the General Plan of Kyiv is a headache for the people of Kiev
As KV repeatedly reported, when the Kyiv City Council adopted decision No. 262/262 of September 18, 2008, the current mayor of the city, Vitali Klitschko, was in opposition to the then head of the capital, Chairman Leonid Chernovetsky, and actively criticized the idea of developing a new General Plan. However, having become the mayor of the city, Klitschko decided not to abandon the idea of approving a new version of the capital’s main urban planning document.
Experts and public activists have repeatedly opposed such an initiative of the city authorities. For example, they indicated to the fact that the “new” General Plan is needed only so that the city authorities can legalize in this way the illegal land acquisition of past years (among them – the transfer of recreational land, transport infrastructure, etc. to housing and shopping centers for development – KV) and hide other mass violations of the current General Plan of Kyiv. Among these is the systemic failure to fulfill the tasks set out in the General Plan for the development of urban infrastructure (construction of new roads, interchanges, metro stations, bridges, sewers, transformer substations, etc.).
Also, experts in the field of urban planning and architecture stated that the city leadership should monitor violations of the General Plan adopted in 2002, punish those responsible for these violations and adjust the current “urban constitution of the capital” – regardless of whether the city authorities develop a “new” General plan whether to update the “old”.
However, the KSCA and the Kyiv City Council decided not to waste their time on such “trifles”, and the communal organization “Institute for the General Plan of the City of Kyiv” (KO “Kyivgenplan”) stubbornly took up the development of the draft of this document. In recent years, the city authorities have repeatedly — for example, in 2017, 2019 and 2020 — reported that the draft of the new General Plan is already ready and is about to be approved. One of the latest statements took place in November 2020 – then KO Kyivgenplan announced on the start of public hearings on this document.
At the same time, during these years, the draft of the “new” General Plan of the capital has changed several times. Some such adjustments in the Kyiv City Council explained the fact that the initial project is already outdated, because its development began decades ago. At the same time, experts argued that different sources actually published different versions of the draft General Plan at the same time, and its graphic materials sometimes did not correspond to textual ones, which made the study and discussion of this document significantly complicated.
In addition, specialists were surprised that the city authorities could not decide for what period the “new” General Plan should be designed. As already noted, when deciding the Kyiv City Council No. 262/262, the city leadership prescribed that the “new” General Plan of Kyiv should be valid until 2025. But in the future, KO “Kyivgenplan” and the Kyiv City State Administration reported that this document would determine the development of the city until 2040. At the same time, individual initial data of one of the variants of the draft General Plan were generally prescribed for a certain “perspective”, the time frame of which was not indicated by the developers of the document.
As a reminder, since October 26, 2021, Kyivgenplan has been headed by Dmitry Lykov as acting head. His predecessor in this post was Sergei Bronevitskywho led this communal organization from August 27, 2010 to September 30, 2021. “Kyivgenplan” reports to the Department of Urban Planning and Architecture of the Kyiv City State Administration, which since November 1, 2016 is headed Alexander Svistunov.
For a long time, the work of this department was directed and controlled by the First Deputy Chairman of the KSCA Nikolai Povoroznik, but from April 2, 2021, this function was assigned to the Deputy Chairman for the implementation of self-governing powers of the KSCA Petr Olenych.
Since March 4, 2020, the Cabinet of Ministers of Ukraine has been headed by Denys Shmigal (on the collage on the right), ex-Chairman of the Ivano-Frankivsk Regional State Administration (from August 1, 2019 to February 5, 2020) and ex-Minister for the Development of Communities and Territories (from February 4 to February 4, 2020). March 2020) .
Ivan Kulik, translation Skeleton.Info
DOSSIER: Nikolai Povoroznik: Koreiko from the Kyiv City State Administration, or a modest operator of financial schemes. PART 1
