       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 13, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2335
                          Lower Tribunal No. 15-8493
                             ________________


                            Barbara Falkinburg,
                                    Appellant,

                                        vs.

 Village of El Portal, Fullview International Group, LLC, Wealthy
     Delight, LLC, and Biscayne Park Acquisition Group, LLC,
                                    Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, Thomas J.
Rebull, Judge.

       Coffey Burlington and Jeffrey B. Crockett; Legal Services of Greater
Miami, Inc., Evian L. White and Jeffrey M. Hearne; Community Justice Project,
Inc. and Charles F. Elsesser, Jr., for apellant.

     Greenspoon Marder, Joseph S. Geller and Jason D. Silver (Fort Lauderdale);
Howard L. Kuker; Kriss & Feuerstein, Jerold C. Feuerstein and Jennifer Tolston
(New York), for appellees.

Before, SALTER, FERNANDEZ and LOGUE, JJ.
      FERNANDEZ, J.

      Plaintiff Barbara Falkinburg appeals the trial court’s order granting the

defendants’ motions to dismiss. We reverse because the plaintiff’s complaint

alleged a meritorious cause of action under section 723.083, Florida Statutes

(2015), thus the trial court erred in dismissing it.

      Falkinburg lives in a 240-lot trailer park in the Village of El Portal in Miami,

Florida called “Little Farm Mobile Home Park.” Little Farm is located along

Biscayne Boulevard, north of 79th Street. The complaint, filed by Falkinburg and

two other co-plaintiffs who are also residents of Little Farm,1 alleges that the

Village of El Portal, a municipality of the State of Florida, did not comply with the

statutory requisites of section 723.083, Florida Statute (2015), when the Village

entered into a Settlement Agreement with the defendants, who were the current

and prospective owners of Little Farm. The terms of the Settlement Agreement

required that the owners start the process to close the mobile home park within

sixty (60) days. The Settlement Agreement, which was attached to Falkinburg’s

complaint, states that the Village of El Portal had determined that the residential

mobile home park is no longer a permitted use of the property under the Village’s

current Land Development Code and that it would be “advantageous to demolish

and remove the mobile homes existing on the site.” The Complaint further alleged

1Of the three plaintiffs that joined in the complaint filed in the trial court, only
Falkinburg appealed to this Court.

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that the Village of El Portal would prefer a mixed use and commercial

development to Little Farm.

        In addition, the complaint alleged that the Village of El Portal never made

any findings, determinations, or investigation on the statutorily required issue of

whether “adequate mobile home parks or other suitable facilities exist for the

relocation of the mobile home owners.” The complaint states that no finding of the

existence of comparable alternative housing for the Little Farm residents could be

made. It further sought a declaration to invalidate the Settlement Agreement signed

by the Village of El Portal, an injunction against the closing of Little Farm, as well

as a statutory attorney’s fees award under section 723.068, Florida Statutes (2015).

        The four named defendants, the Village of El Portal, Fullview International

Group, LLC, Wealthy Delight, LLC, and Biscayne Park Acquisition Group, LLC

filed motions to dismiss. At the hearing before the trial court on the motions to

dismiss, the issue before the court was whether the complaint and its attached

Settlement Agreement stated a cause of action under section 723.083. The Village

of El Portal conceded that the Settlement Agreement had been approved by its

council members and thus constituted “official action.” It also conceded that the

Village of El Portal had not studied the relocation issue to determine that mobile

home parks or other adequate alternative housing existed for the residents of Little

Farm.



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       The trial court dismissed the complaint with prejudice, finding that the

signing of the Settlement Agreement did “not constitute official action which

would result in the closure” of Little Farm. Falkinburg filed a motion for

reconsideration or to amend, which was denied. This expedited appeal followed, as

at least 85 evictions of Little Farm tenants have been filed since the Settlement

Agreement was entered into and a “notice of park closing/change in land use” has

been sent to all residents asking them to vacate Little Farm by February 2016.

      We review this case de novo, as it involves a trial court granting a dismissal

with prejudice of a complaint. Morin v Florida Power & Light Co., 963 So. 2d 258,

259 (Fla. 3d DCA 2007).        In addition, a reviewing court follows the same

constraints as a trial court when ruling on a motion to dismiss for failure to state a

cause of action, that is, “the trial court must treat as true all of the complaint’s

well-pled allegations, including those that incorporate attachments, and to look no

further than the complaint and its attachments.” Id. at 260. We agree with

Falkinburg that the trial court erred in dismissing the pending complaint with

prejudice.

      Section 723.083states:

      No agency of municipal, local, county, or state government shall
      approve any application for rezoning, or take any other official action,
      which would result in the removal or relocation of mobile home
      owners residing in a mobile home park without first determining that
      adequate mobile home parks or other suitable facilities exist for the
      relocation of the mobile home owners.


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Thus, in order to establish a violation of section 723.083, the following elements

need to be satisfied: (1) official action by a municipality; (2) which action would

result in the removal or relocation of mobile home owners; and (3) which action

was taken without a prior determination that adequate facilities exist for relocation

of the residents. Falkinburg alleged all three elements in her complaint.

      As Falkinburg points out, there is no dispute as to the first and third

elements. With regard to the first element, the Village of El Portal admitted that the

Settlement Agreement was approved by its council members and, as such,

constituted “official action” by the Village of El Portal. As to the third element, the

Village further admitted that no prior analysis of the relocation issue had been

done, as no relocation study was conducted.

      Turning to the second element that Falkinburg must establish to support her

claim of a violation of section 723.083, whether the removal or relocation of the

mobile home owners would result from the municipality’s official action, the

Settlement Agreement required the closure of Little Farm and indicated the need

for the “demolition” of the mobile homes in the park. The Settlement Agreement

specifically requires that the process to close the mobile home park begin within

sixty days of the sale, and Wealthy Delights admits on page six of its Answer Brief

that the Settlement Agreement provides for the closure of the mobile park.

Falkinburg’s complaint alleges that the Settlement Agreement required “removal


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or relocation” of the mobile home residents of Little Farm. These allegations in

Falkinburg’s complaint were sufficient as a matter of law to establish the second

element required under section 723.083. Accordingly, the complaint should not

have been dismissed.

      In sum, under section 723.083, the government agency – the Village of El

Portal – before taking any action that would lead to the removal or relocation of

the mobile home residents, had to determine if there existed adequate mobile home

parks or other suitable facilities for Little Farm’s mobile home residents before it

could take “official action.” Because the Village did not comply with the statute,

the allegations in Falkinburg’s complaint were sufficient to state a cause of action

under the applicable statute. Thus, the trial court erred in dismissing Falkinburg’s

complaint, and the case is reversed and remanded to the trial court for expedited

action.2

      Reversed and remanded with instructions for expedited consideration by the

trial court of the plaintiff’s complaint for declaratory and injunctive relief.




      2 We decline to address the issues regarding whether the other three named
defendants, apart from the Village of El Portal, are proper parties, as these are
issues for the trial court to address on remand.


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