Real Estate Law Article
CCLM Law

Distinguishing Land Use and Zoning

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By Zachary H. Brown

When trying to develop property for certain uses, it is likely that a local government has placed restrictions on how that property may be developed. Local governments do this in order to take advantage of a more efficient use of resources, plan for future growth, and for the general safety and welfare of the public. Two of the most common forms of restrictions are known as land use and zoning. These two tools of regulation shape how a community evolves, but the two restrictions are commonly confused for one another. The following shall serve as an overview of what land use and zoning are, and how these two regulatory controls compare and contrast.

Land use is a shortened phrase for what professionals in planning refer to as the future land use map, which is typically located in a local government’s comprehensive plan. The land use map is one of the most important features contained in the comprehensive plan, which is regarded as the blueprint for growth and development for the community. Local governments, when drafting the future land use map and comprehensive plan, will take into account population projections, safety, morals, and the general welfare of the citizens in how best to plan future growth over a long-range planning horizon. The ultimate goal of the comprehensive plan and future land use map is usually to engage in sustainable development so that local governments avoid common issues like urban sprawl or inefficient us of utility and transportation resources. If a property owner wants to change the comprehensive plan and future land use map, he or she will typically go through a more stringent amendment process than a property owner seeking a zoning change.

Zoning is a tool used by local governments whereby the government will spell out the specific uses that are permitted on a property if it were to develop today. Zoning is not as much geared towards future growth like land use is (although it can have an impact on the future of the property), but is focused on how a piece of property may be able to contribute to the rest of the community, and whether development of that property is compatible with the surrounding uses. Zoning isn’t limited to just specific uses, but also a number of different restrictions that include location of utilities, setbacks from the streets or property lines, size and height of structures, etc. The Florida Legislature and Courts have established rights and obligations for property owners, impacted neighbors and local governments. Each local government has its own comprehensive plan and land development code, so each local government uses a different set of regulations when developing property. When trying to develop property, it is important to recognize what kind of land use and zoning designations apply to your property and what entitlements are necessary to accomplish your intended use of your property, and the restrictions that come along with those designations. It is wise to consult with experienced land use/zoning counsel to help you understand and navigate the 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.

Estate Category
Kevin Albaum

Crafting an Estate Plan to Include Disabled Family Members

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By: Kevin R. Albaum

Without proper planning, leaving an inheritance (or making a gift) to a disabled family member can cause the disabled person to lose their means-based government benefits such as Supplemental Security Income (“SSI”) and/or Medicaid. SSI is a federal government program that pays monthly cash ($771.00 maximum per month in 2019) to blind or disabled adults and children. To qualify for SSI, an individual must have under $2,000.00 of countable assets and very limited income. Medicaid is a Federal and State funded health insurance program that helps people with limited assets and income pay for their medical costs. A large portion of the Medicaid programs in Florida require a person to be disabled to receive benefits.

It is common for an individual to name their spouse and/or children as beneficiaries in their Last Will and Testament (“Will”) or Trust. However, what if your spouse and/or child is disabled… does the estate plan still accomplish your goals if you were to die? Unless you have created some form of a special needs trust to protect your disabled family member’s inheritance, your death could result in an unexpected loss of SSI and/or Medicaid to them.

A special needs trust (“SNT”) is a specific type of trust that is designed for disabled beneficiaries. A SNT is written so cash, real property, and other assets are available for the disabled person’s benefit while still allowing the disabled person to receive their means-based government benefits such as SSI and/or Medicaid. There are a few different ways to create a special needs trust. A Testamentary Special Needs Trust is a trust that is created within your own Will or Trust that only goes into effect when the creator of the Will or Trust dies. You can also create and fund a SNT for a disabled beneficiary during your lifetime instead of waiting for the testamentary SNT to go into effect upon your death.

The trusts I have discussed so far in this article are Third-Party Special Needs Trusts. This means they are set up by someone other than the disabled person and funds can be contributed to the trust by other donors as well. A Third-Party SNT can be named as the beneficiary of life insurance policies and retirement accounts, own investment accounts, or real property. A Third- Party SNT’s assets which not used for the disabled beneficiary during their lifetime can pass to other non-disabled beneficiaries upon the death of the disabled beneficiary (free from Medicaid Recovery Liens as the property in a Third-Party SNT never belonged to the disabled beneficiary).

Unlike the trusts discussed in this article, First-Party Special Needs Trusts are set up and funded with the assets (or injury settlement proceeds) belonging to a disabled person and no other funds can be contributed to this type of trust by any other donors. First-Party Special Needs Trusts are subjected to Medicaid Recovery Liens to reimburse the state of Florida upon the death of the disable person. Special Needs Trusts are complex to draft, fund, and administer without professional guidance at the onset. Therefore, if a SNT would be a beneficial part of your estate plan it is recommended that you discuss with a qualified estate planning or elder law attorney.

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