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10. ILLEGAL RESTRICTION OF PUBLIC ACCESS TO COMPREHENSIVE CITY PLANS

   


[1]

The law that does not work

Inefficiency of the practical implementation of the new information and urban development legislation, specifically of the declared provisions on access to urban development documentation, Comprehensive city plans in particular, is a constant source of disappointment.   

Article 17, p.11 of the Law of Ukraine “On Urban Development Regulations” specifies that “access to urban (populated areas’) development materials is provided by its publication on the web-site of a local   self-government and in local periodical printed media as well as in public areas of the self-government premises, with the exception of the sections which constitute classified information under the law. These sections can be included into the plan as separate chapters.”

The quoted provisions of the Law are supported by a number of constitutional norms, international agreements, ratified by Ukraine, Laws “On Access to Public Information,” “On Local Self-governance in Ukraine” etc. Despite all that parts of these provisions are systematically violated.  

The access to the overwhelming majority of the Comprehensive city plans is restricted by the marks “For office use only” and “State Secret.” Often local self-governance bodies tend to declare the availability of urban development plans for the public, hiding the fact that the access to them is restricted.[2] The same is true with respect to the full contents of these documents, in particular, the fact that they contain some parts with classified information. As a rule this information is not published in the open sources, but is only provided on special demand. Therefore, 31 million of Ukrainian city dwellers have no access to the public documents.  

What the Comprehensive city plan is and why it is so important for the public

The Comprehensive city plan is the main document in the system of urban development documentation at the local level. It describes the actual status of populated areas, determines major domains of development, planning and construction for the next 15-20 years.

The Comprehensive city plan is a regulatory-legal act. Its regulatory nature is defined by the fact that it is an official written document, adopted by the authorized regulatory body (local council) in the format stipulated by the law[3] by the due procedure.[4] The Comprehensive city plan is aimed at regulating social relationships (development, land use, spatial planning) and refers to legal norms. It is of non-personified nature, is devised for multiple uses and is compulsory for all the institutions and companies involved in the urban development and use of land for different purposes.

The Comprehensive city plans are the documents aimed at counteracting chaotic development of a city. They are devised on the basis of the state construction, fire, sanitary-hygiene and other norms, which thus become components of the development and construction requirements regarding specific facilities and buildings. Zoning is an important part of the Comprehensive city plan. Under this document a city is divided into functional zones (residential, industrial, recreational, commercial, manufacturing etc.). Construction of facilities in these areas can be conducted only in compliance with their functional characteristics. As regulatory documents Comprehensive city plans are called to prevent the breaches of law and violations of public interests protected by the law.  Nevertheless, due to their secret nature, they perform this function only partially.   

Unavailability of the Comprehensive city plans prevents public from controlling and opposing non-sanctioned development, conducted without appropriate agreement with the local community, in violation of construction, fire, sanitary and other norms. Some buildings constructed with disregard to the said norms pose a direct threat to life and health of the residents.   

Unavailability of the Comprehensive city plans makes the city dwellers unaware of the factors which affect real cost of their property and conditions of life. The Comprehensive city plans’ components determine the districts for further renovations and new development areas. In the areas destined for reconstruction the dwellers’ property can be confiscated under the pretext of “common good” or “public needs.” The fair compensation is not always paid. Development of new commercial and logistics centers, industrial and transportation facilities usually lead to the increase in air pollution and noise, deterioration of   the quality of life and the decrease of residential property value. Unavailability of the Comprehensive city plans deprives the residents of the opportunity to learn in advance about the administrative decisions which determine their conditions of living and property value. As a result the right of the residents to uninterrupted ownership of their property is violated.   

The secrecy around Comprehensive city plans leads to the violation of another right, i.e. to participate in public governance. Having no access to a Comprehensive city plan the citizens cannot follow and control the bureaucrats’ actions or check their conformity with the official master plan. They are unable to keep track of the investments into public infrastructure facilities in accordance with strategic priorities for their city development; or to verify the legitimacy of certain bureaucratic decisions on the land use and construction issues.  

It is noteworthy that Comprehensive city plans include information concerning environmental situation (i.e. zones of chemical, noise, radiation contamination), the restriction of access to which is directly prohibited by Article 50 of the Constitution of Ukraine.

How Comprehensive city plans are developed

In order to better understand why the Comprehensive city plans remain unavailable let’s have a look at the contents and format of these documents. Comprehensive city plan for a populated area is compiled of textual materials (explanatory note and principal provisions) and graphic part (maps and layouts of the analytical and computed nature). Both textual and graphic portions of the document usually contain some classified information (predominantly, information for internal use only, but also information classified as state secret).     

In the Comprehensive city plans prepared over the last years with the use of GIS technologies[5], classified information can be easily separated from unclassified data. It is a simple and cheap procedure. New information and urban development law requires the separation of various types of information with different levels of confidentiality. However, the majority of Comprehensive city plans for the Ukrainian cities were devised without GIS technologies. The images were transferred to the large paper or canvas sheets.[6] They are not available in electronic format. It is very difficult, if not completely impossible to separate classified information (if it is there) from the open data on the maps and plans developed in the years 1960-1990 of the past century.

Devising a new Comprehensive city plan in compliance with the requirements of the new law costs, as a rule, over one million UAH[7] (several million for big cities)[8], which is an impressive amount for a city council budget.

On the other hand, it is fairly easy to separate open and classified information in the textual portion of a Comprehensive city plan. Retouching of certain text fragments is possible in textual documents written even several decades ago. Unfortunately this practice is not popular at all due to the lack of interest among professional teams involved in the preparation of Comprehensive city plans or among the officials in charge of urban development documentation.

What type of classified information is included into Comprehensive city Plans?

The list of classified information which can be found in the Comprehensive city plans is rather short. It covers information on networks and sources of water supply, coordinates of these facilities etc.[9] The information concerning actual resources, locations of surface or underground reserve water supply sources for the cities of Kyiv and Sebastopol are considered state secret under 2.3.2 of the “Catalogue of Information Classified as State Secret.”[10]

P 2.2.10 of the same document classifies as state secret “information containing specific indicators on the systems (charts) of external networks of electrical and heat energy, gas pipelines, needed for enterprises, institutions and companies manufacturing arms…”[11]

The Comprehensive city plans include sections describing engineering and technical measures for public defense, the access to which is restricted by the Ministry of Regional Development, Construction and Housing and Communal Services of Ukraine and the Ministry of Emergency of Ukraine[12].

Nevertheless, the main reason for restricted access to the Comprehensive city plans is the fact that the graphic component is presented in the form of large-scale maps and blueprints (at the scale from1:2000 to 1:25000), designed within the systems of coordinates USK-2000, SK-42 or within the local system of coordinates.  These maps and blueprints are still classified under the respective lists of central executive bodies as confidential.

The analysis of confidential information lists within the structure of the Ministry of Defense, Ministry of Regional Development, Construction and Housing and Communal Services, State Committee of Ukraine for Land Resources and some other central executive bodies  reveals numerous contradictions in determining the level of confidentiality with regards to the same mapping data.[13] De-facto one ministry treats certain mapping-geodesic data as confidential and establishes administrative liability for divulging it, while another ministry regards the same data as open information, which can be disseminated freely. 

Many leading specialists of the central executive bodies agree that the use of the single criterion of the maps’ and blueprints’ scale and system of coordinates in determining the confidentiality level of information is obsolete and does not meet current needs. With the development of GIS technologies, significant portion of information has become available due to satellite imaging from space, while spatial coordinates of isolated objects can be determined within 1m range using simple watches, cell phones, lap-tops and cameras equipped with GPS devices.  

Obviously the situation described above is absurd; nevertheless, the central executive body till recently has not undertaken any initiative aimed at resolving the problem. Only in 2012 several inter-departmental meetings addressing this issues and possible solutions were held.  

The representatives of non-military central executive bodies quoted definitive stand of the Ministry of Defense of Ukraine[14], strengthened by the decisions of the military department establishing restricted access to the maps and blueprints[15] as the main reason for such inertia in declassifying the information. The military, in their turn, are trying to shift the responsibility for restricting  access to non-military maps and layouts (including urban development documentation), claiming that Comprehensive city plans are not military documents, and their “aim, order, procedure and methods of devising, as well as structure are determined by the regulatory and legal acts beyond the scope of state defense.”[16]

Finally, after first Vice-Prime Minister’s of Ukraine V.Khoroshkovsky’s order, the decision was passed obliging the Center of Military and Strategic Research under the National University of Defense of Ukraine to carry out a special study in the first half of 2013. The study will be aimed at establishing and justifying criteria to determine the confidentiality level for information found in mapping and geodesic materials. It is expected that the outcomes of the study will become the basis for the decisions which will ultimately resolve the issue of restricted access to the Comprehensive city plans. 

The most probable solution lies in declassifying the large-scale maps and blueprints. Meanwhile, mapping and geodesic materials with textual part which enables detailed familiarization and evaluation of an area for military operations or terrorist acts[17] will remain classified information further on.

However, till these decisions are made, the public access to urban development documentation will remain illegally restricted. Lamentably, alongside with the fact that the said documents are designed on topographic-geodesic basis, considered classified information, there are other hindrances on the way to the public access to urban development documentation.

Other factors interfering with the Comprehensive ciy plans’ openness

An incomplete list of factors impeding public access to urban development  documentation include convenient concealment of land use and construction  information by corrupt local officials, bureaucrats’ reluctance to accept new format of information relations,  life-long tradition of secrecy with respect to public information.

Devising Comprehensive city plans which will be open for the public (with separation of classified information) has been technically possible with the help of GIS technologies for some years already, practically since the moment when these technologies were first used for designing the said plans. However, none of the agents participating in the preparation of Comprehensive city plans ever initiated the introduction of the needed changes. Let’s have a look at these agents.   

The city council, vested with authority to act on behalf and in the interests of the local community, decides to devise a Comprehensive city plan, pays for it and is its owner. The executive committee of the city council chooses the executor by way of bidding (a state research institute of urban planning), which is contracted to develop the Comprehensive city plan.  Different parts of the Comprehensive city plan can be compiled by various contractors (e.g. aerial photography can be performed by one company, while another will deal with the main part of the plan and the third one – with writing basic historic and architectural substantiation). The topographical basis for the complete plan is set up by the data within USK-2000 and SK-42 co-ordinates system, regarded as classified information by certain central executive power bodies and treated as such. In the majority of cases the urban planning institutes mechanically transfer the requirement of restricted access on the materials they use in devising Comprehensive city plans. When the city council receives these plans from the contractors they are already marked as classified information.  

As a result the city council as the owner of a Comprehensive city plan faces absurd situation – due to the “classified” nature of materials it contains, the plan cannot be made public or divulged to the community. The Comprehensive city plan marked as “classified information” cannot be published either in mass media or in the city council web-site, or discussed with public at large. The city council has no authority to declassify the information contained in the Comprehensive city plan[18], as it is within the competence of the developer only. The urban planning institutes, in their turn, cannot declassify the information either, because they use the topographical data regarded as classified information by certain central executive power bodies.  

Each of the institutions involved in this vicious circle could contribute to the problem resolving. The city councils could order a Comprehensive city plan version for general use, i.e. with maps not containing the classified information. Instead the city councils limit their intervention to ordering some visual materials needed for public hearings. Only in the recent years the city councils started to approach the urban planning institutes with the request to declassify the information, although the institutes should have done it much earlier on their own initiative. The specialized Ministry, under which the urban planning institutes function, so far did not request to declassify the materials used in Comprehensive city plans by introducing new technologies.

Why this reluctance and delays in introducing changes? Apparently the possibility to maneuver public information gathered using tax-payers’ money, is advantageous for a certain group of individuals who have access to this restricted information. What are these advantages?

The information important for the urban development and implementation of the new business initiatives (communications’ charts and information concerning their capacity, planning restrictions to be counted with in construction, information on functional designation of the adjacent plots, their exact boundaries etc.) is available for the narrow circle only. The architects are obliged to seek special permits to familiarize themselves with urban development documentation almost on every occasion. The information concerning Comprehensive city plans thus becomes a commodity to be sold by local bureaucrats at their own discretion to the potential investors and designers.

Under paragraph 34 of the aforementioned “Instructions on Registration, Storage and Use of Documents…” the representatives of the outside institutions are granted the permit to use select classified documents in accordance with regulations passed by the institutions’ (structural subdivisions’) CEOs[19]. In real life the decision on granting or refusing the permit to use Comprehensive city plan is made by the city Mayor or the chief architect and is not based on any definite criteria.  This system of randomly granted access to the urban development documentation leads to corruption risks.

Besides, favoritism, nepotism and other manifestations of corruption in allotting land plots and granting construction licenses combined with the secrecy around Comprehensive city plans contribute to economically unjustified decisions, sometimes even detrimental for the budget, in the choice of investors.

Another aspect of current practice of restricting the access to information is the monetary system of incentives for the officials for keeping secrecy. The employees with the access to confidential information (i.e. the majority of Comprehensive city plans before 2007 and some of the more recent plans), receive increased salaries from the national and local budgets.[20] There are no incentives either for the researchers of the urban planning institutes developing Comprehensive city plans or for the local self-governments’ officials to put an end to the practice of classifying public documents as secret.

Traditions also play a significant role in keeping Comprehensive city plans closed for public. They have been considered confidential since soviet times, while people handling them have been regarded as VIPs.  Despite the fact that currently the Comprehensive city plans’ status has changed, they are still kept under the regime of secrecy in special departments of the city councils and rayon state administrations (RDA). These departments are often managed by the former military, brought up under the soviet system and not ready to accept realities and needs of the new information relations in the open democratic society.  Personal stand of these managers often gets into the way to more open information relations between public and bodies vested with state power, including the task of ensuring availability of the Comprehensive city plans.  

The current system of granting access to the urban development information and privileges which it bestows on the limited group of people do not encourage the officials to replace it by more open and transparent system.  

Total ignorance of local self-governments’ officials with respect to the information legislation norms is another reason of Comprehensive city plans’ unavailability. The officials do not know or understand the principle, under which specific piece of information and not the document is to be treated as classified, especially as far as the urban development documents are concerned. The practice of analyzing a document for classified information, restricting access to certain pages or retouching certain paragraphs is not implemented by the majority of the city councils’ officials.    

Often the information requests are not sent to the entities authorized to handle the Comprehensive city plans. It is especially true of small towns where the Comprehensive city plans are usually kept with the rayon state administration. The city councils do not direct the requests to the rayon state administrations, advising the petitioner to approach the RDA in person. And when the city councils manage to direct the requests to the RDA, this latter responds to the city council and not to the petitioner.

 As a result all the components of the Comprehensive city plans for the majority of the Ukrainian cities remain classified information. In everyday life it means that an average citizen has no access to these documents unless he/she works in a urban planning institute or is an employee of a city council with the access to specific information. The author of this study is aware of a single occurrence in the whole history of independent Ukraine, when in the course of public hearing on Comprehensive city plan in Odesa the head of the department of architecture and urban development gave an oral order to let 20 representatives of the local community familiarize themselves with the complete version of the Comprehensive city plan, including the classified information. 

How the access to non-classified information in the Comprehensive city plans can be ensured in other Ukrainian cities?

Availability on the web-sites. Due to the substantial volume of the Comprehensive city plans, their publication on web-sites in electronic format is the most efficient and the cheapest way of providing public access to them. However, the monitoring, conducted for three years by Eastern Ukraine Center for Civic Initiatives and its partners, shows that only about 15% of the Ukrainian cities made some portions of their Comprehensive city plans open for public on their web-sites.[21]

As a rule, the site shows only an insignificant portion of the Comprehensive city plan textual part – basic provisions and/or main blueprint. The cases when several maps and blueprints are available on a web-site are rather exceptions than general rule. The situations when web-sites have no links to Comprehensive city on the city council home pages, do not have a functional retrieval system, while the available  maps and blueprints are hard to read due to the low resolution capacity.

Mass media coverage. The provisions of the Law “On Urban Development Regulations” concerning media coverage of the Comprehensive city plan in local media cannot be implemented to the letter.   The Comprehensive city plan is too big a document (sometimes over 10 volumes of text only, each consisting of dozens if not hundred pages), to be published in full by the local press. Sometimes in the course of public hearing preceding the adoption of Comprehensive city plan some provisions of this documents are published in the local media as well as interviews and commentaries provided by the officials with regards to the plan. Information is printed in the communal publications at the local council expense, which means that the information offered in them is usually unilaterally positive.

Comprehensive city plans availability in the city councils’ premises. In 2012 over 90 out of 459 city councils of Ukraine (mainly of the small cities) declared the availability of the Comprehensive city plans in their own premises. The visits to these city councils revealed that an adequate mechanism for public access to Comprehensive city plan has not been developed yet. As a rule, the interested party has to obtain approval from one of the high officials of the city council. There are no actual premises, where one could study the documents; the search for the documents or their retrieval from the secret department can be time-consuming.          

It is only the small towns with declassified plans or the oblast’ centers where the Comprehensive city plan was recently devised, that offered this service to the public. Usually these centers designed special maps not containing classified data for public hearings (the so-called demonstration hand-outs).  The same materials are open for public in the city councils. 

Comprehensive city plans on written request. This form of access to the Comprehensive city plan is not mentioned in  the Law of Ukraine “On Urban Development Regulations;” it is, however, covered by the Law of Ukraine “On Access to Public Information,” as Comprehensive city plan falls under the category of public information.  

As opposed to the practices of Western democratic countries, the hard copy of Comprehensive city plans of the Ukrainian cities cannot be obtained on request. One of the reasons for that is that routinely these plans are prepared as a technical document (i.e a set of separate books and graphic materials), for limited professional use only, and not as a public document in the reader-friendly format convenient for familiarization and distribution.  In the democratic countries the Comprehensive city plan as a complete document is available on the city council web-site, while the hard copy can be purchased at the cost price right in the city council. In the Ukrainian scenario the owners of the Comprehensive city plans, i.e. the city councils, do not have large-scale Xerox machines to make copies of these important urban development documents for all the stake-holders.

 

Recommendations

1)     The Military and Strategic Research Center under the National University of Defense of Ukraine should specify the criteria determining the level of confidentiality with respect to the information in the maps and geodesic materials, and ensure the availability of the Comprehensive city plans for the public. 

2)     The urban planning institutes should revise the expediency and legitimacy of the “classified” marks on the Comprehensive city plans, developed by the respective institutes and ensure the declassifying of information in conformity with the Ukrainian legislation on information and urban development.    

3)     The Ministry of Regional Development of Ukraine should set up and implement practical mechanisms to ensure public access to Comprehensive city plans, devised without the use of modern GIS technologies.  

4)     The Minister of Regional Development, Construction and Housing and Communal Services of Ukraine and urban planning institutes should set up the new standards for the Comprehensive city plans of the populated areas in Ukraine, in the format convenient for familiarization, copying and dissemination.

5)     State power bodies and local self-governments should train their specialists with regards to the norms of the Ukrainian legislation on information and urban development in order to provide for adequate public access to open (urban development) documentation.    

6)     The Prosecutor’s office should ensure constant supervision over the local self-governance bodies with respect to the legitimacy of their treating Comprehensive city plans as classified information and unwarranted restrictions of public access to the said Comprehensive city plans. 

7)     The public should exercise permanent control over state power bodies’ and local self-governments; compliance with the Ukrainian Law provisions concerning the availability of the Comprehensive city plans for the public.  

 

[1] V. Shcherbachenko. Eastern Ukraine Center for Civic Initiatives.

[2] Confirmation can be found in topical monitoring of the Eastern Ukraine Center for Civic Initiatives (http://cityplan.in.ua/books) and in the answers to information requests of all 459 city councils of Ukraine (http://cityplan.in.ua/cities).

[3] Specified by DBN.1B.1-15:2012 “Structure and Contents of  Comprehensive City Plan of a Populated Area.”

[4] Under Article 17 of the Law of Ukraine “On Urban Development Regulations.”

[5] GIS technologies allow registering, storing, modifying, analyzing and reproducing all forms of geographic information. They enable combing model images of an area (electronic maps, charts, space and aerial images of the Earth surface) with the database presented as charts (of statistical data, lists, economic indicators etc).

[6] Format of maps in the Comprehensive city plan was different, but the size was defined as 0,8м х 1,0м.

[7] 1,000,000 UAH is approximately equal to 125,000 USD or 95,000 EUR.

[8] The Comprehensive city plan cost depends on the size and population of the city and on the urban development documents stipulated in the contract.  Fair bidding in contracting the executor of a Comprehensive city plan is an important factor in the final cost.

[9] The Ministry of Regional Development, Construction and Housing and Communal Services of Ukraine. Pp. 1-3 of the list of classified information for the Ministry of Regional Development, Construction and Housing and Communal Services of Ukraine, approved by the Ministerial Order  №68 of 06.06.2011.

[10] Security Service of Ukraine. On Approving the List of  Data Constituting State Secret: Order № 440 // VRU of 12.08.2005 Access regime: http://zakon3.rada.gov.ua/laws/show/z0902-05/page3

[11] Ibid.

[12] Ministry of Regional Development, Construction and Housing and Communal Services of Ukraine. P. 6 of the List of Classified Information for Ministry of Regional Development, Construction and Housing and Communal Services, approved by the Ministerial Order  №68 of 06.06.2011. Pp.  29, 33,35 of  the List of Classified Information for the Ministry of  Emergency of Ukraine, approved by the Ministerial Order  №75 of 26.07.2011.

[13] E.g. as of September 20,  2011 the Ministry of Defense of Ukraine  classified the information  concerning “city plans at the scale  1:10 000 and 1:25 000 (irrespective of forms and types of the carriers ) in the territory of Ukraine created within the state coordinates system USK-2000 or coordinates system SK-42, which include complete set of data for familiarization with and evaluation of  the area, orientation, localization of objects, finding dimensions for various types of economic and defense activities” as “for office use only.” Meanwhile the Ministry of Regional Development, Construction and Housing and Communal Services of Ukraine treats as classified the city blueprints at the scale 1:10 000-1:20 000, while the State Service of Geodesy, Cartography and Cadastre classified only “city and other settlements’ blueprints at the scale 1:5 000 та 1:2 000 in the local system of coordinates.” For more detail see “How the Comprehensive City Plans Become Secret and What Consequences It Has for the Public: Materials of Public Monitoring of the Ministry of Regional Development, Construction and Housing and Communal Services of Ukraine activity in Compiling the List of classified information.  / EUCCI. : Edited by V.Shcherbachenko – Luhansk, 2012. // http://cityplan.in.ua/books.

[14] The letter of the Minister of Regional Development, Construction and Housing and Communal Services of Ukraine A.Blyznyuk  No 12/20-14-996 of 19.04.2012  to the Cabinet of Ministers of Ukraine.

[15] Ministry of Defense of Ukraine. Minutes of the Expert Board meeting under the state expert for the issues of secrecy – the commander of army support forces of Ukraine № 1 of 22.01.2010.

[16] Letter № 335/2/1942 of 16.06.2011 by the head of the Chief  Department of educational and social and psychological support of the Armed Forces of Ukraine  Major-General O.Kopanytsya in response to information request from EUCCI.  

[17]E.g. the height of plant, factories and other stacks and chimneys, towers, explanatory sign on industrial facilities, electric power plants, hydropower plants,  substations, characteristic of electric power and communication lines, gas pipelines, oil and oil products pipelines and compressor stations etc.

[18] Cabinet of Ministers of Ukraine. On Approving the Instruction on Registration, Storage and Use of the Documents, Cases, Publications and Other Material Carriers of Information Containing Classified Data. Resolution N 1893// VRU of  27.11.1998. – Access regime: http://zakon2.rada.gov.ua/laws/show/1893-98-%D0%BF .

[19] Ibid.

[20] The Cabinet of Ministers of Ukraine. On types, amounts and order for compensations paid to the employees with the access to state secret: resolution № 414 // VRU of    15.06.1994. – Access regime: http://zakon2.rada.gov.ua/laws/show/414-94-%D0%BF

[21] Monitoring reports available at http://cityplan.in.ua/books

 

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