United States District Court, D. Arizona
Honorable D. Thomas Ferraro United States Magistrate Judge.
before the Court is Defendant County of Pima's Motion to
Dismiss (“Motion”). (Doc. 5.) The Motion is fully
briefed. (Docs. 6, 7.) On November 6, 2018, the Court heard
oral argument and took the Motion under advisement. (Doc.
19.) As set forth below, the Motion will be granted in part.
Complaint alleges as follows: Plaintiff Ira Jon Yates
(“Plaintiff') owns approximately 12 acres of real
property in Tucson, Arizona, located at 7801 North La Cholla
Boulevard, Pima County, Arizona (the “Property”).
(Doc. 1-1, ¶ 5.) In 2009, the Property was accessible
via two easements: an addressable access easement from La
Cholla (the “La Cholla Easement”) and a
restricted driveway access easement from Como Drive (the
“Como Easement”). Id. ¶ 6. The
Property is zoned for Suburban Ranch use. Id. ¶
2006, voters in Pima County passed a measure which included a
plan to widen and reconfigure the intersection at La Cholla
and Magee Road (the “Intersection
Reconfiguration”). Id. ¶ 11. Because the
Intersection Reconfiguration would eliminate access to the
Property via the La Cholla Easement, Plaintiff objected and
began discussing possible alternatives that would alleviate
the burden of losing the La Cholla easement. Id.
¶ 14. In June and July 2009, Defendant advised Plaintiff
there was adequate access to the property via the Como
Easement. Id. ¶ 15.
on the Intersection Reconfiguration began in April 2011.
Id. ¶ 16. At a meeting in April 2011, Defendant
again suggested there was adequate access to the property via
the Como Easement. Id. ¶ 17. Defendant also
advised Plaintiff that it would secure alternative access to
the property. Id. ¶ 18. The Intersection
Reconfiguration, which neared completion in July 2011,
eliminated access to the La Cholla Easement. Id.
¶ 19. In August 2011, a curb cut was inserted giving the
appearance of access via the La Cholla Easement. Id.
October and November 2011, the parties signed an Agreement to
Toll and Extend Filing a Notice of Claim and the Statute of
Limitations (the “Tolling Agreement”), which
extended all notice-of-claim and statute-of-limitation
deadlines by 180 days. Id. ¶ 22. Defendant
acknowledged in the Tolling Agreement that the intersection
might be altered, that alternative access rights might be
perfected, or that Defendant might initiate a direct
condemnation action to acquire the La Cholla Easement.
Id. ¶ 23. Instead of doing any of the
foregoing, Defendant maintained that the Como Easement
provided access to the Property that was adequate to develop
the Property. Id. ¶ 24.
December 2016, Plaintiff filed an application with Pima
County Development Services to rezone the Property from
Suburban Ranch to CR-5 (Multiple Residence Zone).
Id. ¶ 25. Plaintiff designated the Como
Easement and La Cholla Easement as the access points.
Id. On January 19, 2017, Pima County Development
Services advised Plaintiff that the “proposed access
onto La Cholla does not meet street standards for corner
clearance” and that the Arizona Department of
Transportation did not support the proposed use of the La
Cholla Easement. Id. ¶ 26.
four months earlier, in August 2016, Plaintiff filed a
declaratory judgment action in Arizona Superior Court, Pima
County to determine the scope of the Como Easement for
purposes of his then-forthcoming rezoning application.
Id. ¶ 27. On April 12, 2017, the Arizona
Superior Court entered its order declaring that the Como
Easement was designed to allow access only to the existing
structures on the Property and that the Como Easement does
not create the rights necessary to develop the Property as
intended by Plaintiff. (Id.)
rezoning application expired on April 19, 2018 due to
inactivity. Id. ¶ 28. Plaintiff contends that
the Intersection Reconfiguration “interferes and is
inconsistent with [his] use of the [La Cholla] Easement and
the […] Property[.]” Id. at ¶ 29.
Plaintiff submitted a notice of claim on October 6, 2017 to
which Defendant did not respond. Id. ¶ 30.
alleges an inverse condemnation claim under Arizona law
(Count I) and a claim under 42 U.S.C. § 1983, predicated
on an alleged taking without just compensation in violation
of the Just Compensation Clause of the Fifth Amendment of the
United States Constitution (Count II). (Id. at 6-7.)
Defendant removed this action on August 15, 2018. (Doc. 1.)
Thereafter, Defendant timely moved to dismiss Plaintiff's
Complaint arguing that Plaintiff failed to file his Complaint
within the relevant limitations period. (Doc. 5.)
complaint must include a “short and plain statement . .
. showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). While Rule 8 does not require in-depth
factual allegations, it does require more than
“labels[, ] conclusions, [or] a formulaic recitation of
the elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). There must be
sufficient “factual content [to] allow the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
under Rule 12(b)(6), Fed. R. Civ. P., may be “based on
the lack of a cognizable legal theory or the absence of
sufficient facts alleged under a cognizable legal
theory.” Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990). When
reviewing a motion to dismiss pursuant to Rule 12(b)(6), a
court takes “all factual allegations set forth in the
complaint . . . as true and construed in the light most
favorable to plaintiffs.” Lee v. City of L.A.,
250 F.3d 668, 679 (9th Cir. 2001). However, only well-pleaded
facts are given a presumption of truth. Iqbal, 556
U.S. at 679. Conclusory allegations-that is, allegations that
“simply recite the elements of a cause of ...