When does an ADA cause of action accrue regarding public sidewalks?

Frame, et al. V. City of Arlington is an interesting Americans With Disabilities Act case from the 5th U.S. Circuit Court of Appeals, decided July 7. Disabled individuals sued the city of Arlington for having sidewalks that did not comply with the ADA. The ADA prohibits a public entity from denying the benefits of "services, programs, or activities" to a disabled person but does not define that phrase. The 5th Circuit, in a case of first impression in the circuit, found that the ADA covers sidewalks, curbs and parking lots. (The 5th Circuit declined to follow the 9th U.S. Circuit Court of Appeals, which has held that anything a public entity does is covered. Breathe easy, Texas cities.) The court also looked at this question: When does the cause of action accrue? In a 2-1 vote it held that the date the city completed noncompliant construction triggered the two year statute of limitations, not the date on which the plaintiffs encountered a noncompliant barrier. But because the trial court put the burden on the plaintiffs to prove accrual and expiration of the statute of limitations preceding the filing of their complaint — which the appeals court said was erroneous — the case went back to the trial court for the city to prove its affirmative defense of limitations. An en banc is, I think, the next stop.