Real Estate

Distinguishing Variances and Special Exceptions

By: Zachary H. Brown
Clark, Campbell, Lancaster & Munson, P.A.

There are many avenues that property owners could travel to get around certain restrictions that local governments impose upon property throughout their jurisdiction.  Sometimes local governments will restrict, for example, how high buildings can be built, or how property can be used.  Such restrictions play an important role in how local governments plan and zone our communities.  The most common tools that allow property owners to get around these restrictions are variances and special exceptions.

The primary difference between a variance and a special exception is that a variance grants a property owner the ability to use his or her property in a manner that is completely against local regulations, while a special exception is a circumstance that local governments specifically recognize before drafting a law, and will make provisions that recognize exceptions in the regulation itself.  Each tool comes with its own benefits and drawbacks, but after a brief explanation they may be slightly easier to understand for property owners seeking to develop their property.

A variance is granted only when a property owner shows an undue hardship created by unique circumstances that the property owner did not create.  The law is very clear that if the hardship is created by the property owner, a variance should not be granted.   For example, is a hardship self-created if you buy a piece of property expecting to put a gas station on it, but local zoning laws prohibit gas stations in that zone?  Florida courts have held in that situation, the hardship was self-created because that person knew of the zoning laws before buying the property, and thus created the hardship for himself.  In essence, ignorance of local laws does not create undue hardships for property owners.

Typically, variances can fall into two categories – use variances and area variances.  Use variances allow for property owners to use their property in a way not allowed by law, such as using your property in a zoning district that prohibits certain uses.  An area variance allows property to be developed in a way that violates some dimensional requirement imposed by local regulations.  This is most commonly found in height restrictions or setback requirements in local land development codes, where those restrictions limit development in such a way that development of the property is considered impossible.

Special exceptions are used by local governments when a particular use of the land is potentially problematic, but can be allowed if subjected to heightened development standards.  These are also frequently referred to as special use permits or conditional use permits.  Common examples of special exceptions are adding religious buildings or schools to local neighborhoods where residential property is the primary use.  Local governments will grant these requests, but likely only by requiring certain “conditions” be met prior to approval of the use.  There are a number of different conditions local governments can impose, but a few of them include landscaping features, parking upgrades, or right-of-way conveyances.

These are just a few common tools that are available for those property owners seeking to develop their property.  As always, the best course of action is to retain a local attorney to assist with this process.

Zach Brown is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

The Basics of Medicaid Financial Eligibility for Nursing Home Residents

By: Kevin R. Albaum
Clark, Campbell, Lancaster & Munson, P.A.

A person’s transition to a skilled nursing facility (a/k/a “Nursing Home”) is often a very difficult time for a family. Not only is the person’s physical or mental health often declining but the person and/or their family is often burdened with figuring out how to pay for the facility. Health insurance coverage often will pay for the first few days or months at the Nursing Home but that eventually stops and the cost of a Nursing Home once health insurance is no longer paying often gets exorbitant even for the middle-upper class (the monthly cost for a private pay resident at many Nursing Homes can often exceed $10,000.00 per month). This results in residents no longer being able to afford the Nursing Home and having only two (2) options to pay for their care: (1) qualify for Medicaid Nursing Home coverage or (2) pay the private pay rate any way possible by selling off all assets, impoverishing the spouse at home (the “Community Spouse”) or getting financial help from their children. Many decide to pursue the first option.

In order to qualify for Medicaid Nursing Home coverage in Florida, an applicant must pass a three (3) part test that looks at a person’s assets, income, and health at the time they file the Medicaid application. The scope of this article is just to discuss the basics of the asset and income eligibility tests for Medicaid Nursing Home coverage in Florida in 2019.

Income: Effective January 1, 2019, an individual can have a maximum of $2,313.00 per month in income (before deductions) in order to be eligible for Medicaid Nursing Home coverage. However, if an individual’s income is above that figure, then proper legal planning to create a qualified income trust will be often utilized in order able to make the individual eligible. However, timing is very important because if the income trust is not set up properly and funded properly, an individual will still not be eligible for Medicaid. There is a common misconception that a Community Spouse’s income being too high will limit the applicant spouse from obtaining Medicaid eligibility, however, a Community Spouse’s income can be unlimited and it does not impact a Medicaid applicant’s eligibility for Medicaid benefits.

Assets: Effective January 1, 2019, an individual can have a maximum $2,000.00 of countable assets and be eligible for Medicaid Nursing Home coverage. However, if an individual’s countable assets are above that threshold there are often a multitude of legal planning options available in order for the individual to become eligible for Medicaid Nursing Home coverage. There are two (2) types of asset classes to consider when applying for Medicaid Nursing Home coverage: Countable Assets (assets that impact Medicaid asset eligibility) and “Non-Countable Assets” (assets that are not calculated into Medicaid asset eligibility). Some Non-Countable Assets are as follows: homestead property up to $585,000.00 in value; one automobile of unlimited value; a prepaid burial contract with a nursing home (in most circumstances) and term life insurance without a cash value. Most other items such as bank accounts, investment accounts, life insurance with a cash value, CDs, annuities, etc. are considered Countable Assets. There is also a common misconception that a Community Spouse must also not have any assets in order for their spouse in the Nursing Home to be eligible for Medicaid benefits. Effective January 1, 2019, a Community Spouse can have a maximum of $126,420.00 of countable assets without impacting their spouse’s Medicaid eligibility.

Obtaining Medicaid eligibility and understanding the income and asset tests can be incredibly complex to those who are new to the subject, therefore, it is highly recommended that a qualified elder law attorney assists you in obtaining Medicaid financial eligibility before you file a Medicaid application.

Kevin Albaum is an attorney in the Elder Law Practice of the law firm Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.