dissenting.
The Court correctly decides that the trial court erred in holding that the Delaware River Port Authority (DRPA) could *408be subjected to the unilateral application of New Jersey’s statutes and regulations, but goes on to conclude that the °DRPA has given its implied consent to the construction of the elevator. Ante at 403, 404. I dissent.
For openers, it should be noted that this theory of implied consent has not been raised or argued by any of the parties at any level of the proceedings. To the extent that its genesis may be made out, it must be uncovered in a statement by the Appellate Division to the effect that the DRPA is “not exempt” from the pertinent New Jersey law “by virtue of the contractual arrangements and property conveyances” between the parties. See ante at 391. Assuming that the quoted passage means what the majority says it means, the question of implied consent is one that the parties have not addressed in any fashion. Given the opportunity to do so, they doubtless could present a number of legal and factual arguments in support of their respective positions. But by virtue of its conclusion today, the majority effectively has precluded the parties from ever raising any arguments in respect of this novel theory of law.
It is worth noting as well that this matter comes to us on appeal from cross-motions for summary judgment. Sparse as it is — and lacking for obvious reasons any conclusion by a fact-finder that the DRPA gave its implied consent — the record belies any notion that such consent may have been given. Negotiations concerning the construction and operation of the Transportation Center began sometime before 1983. The record is replete with the DRPA’s express refusal, from that time forward, to allow installation of the elevator, a fact that the majority concedes. Ante at 403. The first set of plans— with provisions for staircases and an escalator, but none for an elevator — was submitted to the Department of Community Affairs (DCA) for approval in May 1983. During continuing negotiations with the City and DCA over the next two years *409and throughout the pendency of this lawsuit, the DRPA has repeatedly refused to budge from its position that it could not be required to allow the installation of the elevator.
Despite this clear and uncontroverted record, the Court nevertheless determines that the DRPA gave its implied consent to the installation of the elevator. That conclusion springs from a perception that the DRPA “had to understand” that construction of the Center would be subject to state and local construction requirements. Ante at 404. But as the record makes plain, DRPA’s “understanding” was, in fact, at odds with that suggested by the majority. In a certification submitted to the trial court on a post-judgment application, DRPA’s project representative for the construction of the Center indicated that the initial plans and specifications had no provision for an elevator because “other provisions were in effect at that time to transport the handicapped * * *. With this action DRPA was of the opinion that all regulations regarding the transportation of the handicapped had been met.” Moreover, when DCA initially pointed out that installation of the elevator was required under the New Jersey Uniform Construction Code, the DRPA responded that its status as a bi-state agency exempted it from the unilateral application of the Code’s provisions. How, then, can one possibly conclude that the DRPA “had to understand” that state and local regulations would mandate installation of the elevator?
Further, the Court “note[s], without resolving its meaning,” ante at 404, a provision of the Agreement that expressly anticipates changes in the construction plans, but only with the added proviso that any such changes “shall require the prior written approval of the CEO of the DRPA.” Ante at 403-404. From this, the majority infers that “consent to some changes was implicit in the understanding of the parties * * *.” Ante at 404. The difficulty in resolving the meaning of the quoted provision escapes me. My guess would be that it means *410exactly what it says: any changes in the construction plans, e.g., provision for an elevator, “shall require the prior written approval of the CEO of the DRPA.” Absent that approval— and there is none in this case — the DRPA cannot be deemed to have consented to any change in the construction plans.
To a great extent the lengthy and comprehensive Redevelopment and Reconstruction Agreement, entered into by the DRPA and Camden in June 1984, anticipates the problem that confronts us here today. In recognition of the fact that Camden would have to obtain “necessary permits” for the construction of the Transportation Center, the Agreement also provides that if Camden is delayed in obtaining any such permits, the DRPA’s only obligation shall be to “consult” with the City in respect of such delay. The DRPA and the City specifically agreed that the DRPA “shall have no obligation to take any action to facilitate the issuance of such permit(s).” In other words, the DRPA is under no contractual obligation to allow installation of the elevator, even if that is what is required to obtain the necessary permits to construct and operate the Transportation Center.
In light of the DRPA’s continuous express refusal to comply with New Jersey law and to allow installation of the elevator, how could the majority possibly determine that the DRPA had given its implicit consent to the installation? Or, perhaps even more troublesome, how could this Court suggest as a matter of law that an implied consent could somehow override an unyielding express refusal to consent? Cf., e.g., Moser v. Milner Hotels, Inc., 6 N.J. 278, 280 (1951) (noting the “ ‘well settled rule that an express contract precludes an implied one. An implied contract cannot exist when there is an existing express contract about the identical subject. The parties are bound by their agreement, and there is no ground for implying a promise.’ ” (quoting Voorhees v. Ex’rs of Woodhull, 33 N.J.L. 494, 496 (E. & A.1869)); Walter v. Introcaso, 135 N.J.L. 461, 463 (E. *411& A.1947) (“No grant of an easement can arise by implication where there is an express contract relating to the matter.”).
One additional note. The construction of the Transportation Center has been financed in large part by a United States Urban Mass Transit Association grant. As a matter of federal law, then, must Camden provide access for handicapped from the main level of the Center to the PATCO train platform? See, e.g., 49 U.S.C. App. § 1612(a) (declaring it to be a national policy that the elderly and the handicapped “have the same right as other persons to utilize mass transportation services [,] * * * and that all Federal programs offering assistance in the field of mass transportation * * * should contain provisions implementing this policy.”); 29 U.S.C. § 794 (“No otherwise qualified handicapped individual * * * shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”); Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720, 83 L.Ed.2d 661, 672 (1985) (recognizing that in order to assure the handicapped “meaningful access” to benefits provided by a grantee of federal funds, “reasonable accommodations in the grantee’s program or benefit may have to be made.”). The DRPA’s status as a bi-state agency is irrelevant to the question of whether Camden has complied with federal law in its construction of the Center. I recognize that the question of the ramifications of federal financing has not been raised, and I do not pretend to know the answer; but the issue is one that the parties and the trial court may wish to explore on remand.
For affirmance — Chief Justice WILENTZ and Justices HANDLER, POLLOCK, GARIBALDI, STEIN and O’HERN — 6.
Opposed — Justice CLIFFORD — 1.