The Sixth Circuit in State ex rel. Boggs v. City of Cleveland provides some interesting guidance on the application of res judicata in the public takings context.
Plaintiffs, owners of property near the Cleveland airport, originally brought suit in 2002 to compel the City to initiate appropriation proceedings because the level and frequency of flights was effectively a public taking of their property without just compensation. The case was dismissed with prejudice. In 2008, plaintiffs again brought suit against the City seeking to compel appropriation proceedings based on three new occurrences that took place after the filing of the 2002 action: first, the runways had been further expanded; second, the expanded runways allegedly poisoned the plaintiff’s sole water supply; and third, the City had certified to the FAA that it would eventually acquire the property.
Analyzing plaintiffs’ case under Ohio’s test for claim preclusion, the Sixth Circuit held that the plaintiffs’ second action was not precluded for two reasons. First, even though the City had planned the airport’s expansion and undertaken the first stage of the expansion well before the original 2002 action was filed, the 2004 and 2007 expansions had not yet occurred, nor had the environmental damages been incurred by plaintiffs. Therefore, the claims in the second action could not have been litigated in the first. Second, the court determined that the 2004 and 2007 runway expansions were distinct events from any earlier expansion, and resulted in new facts and changed circumstances. Thus, the claims in the second action were premised on a new transaction or occurrence and were not barred by claim preclusion. This case illustrates how new facts can revive a dismissed takings claim (but of course it doesn’t speak to whether that revival will ultimately be successful).