Fritz, Lynch and Ackerman. The opinion of the court was delivered by Lynch, J.A.D.
The Village of Ridgefield Park (village) appeals from judgments of the Division of Tax Appeals reducing the 1969 and 1970 assessments upon certain real property owned by taxpayers of the community.*fn1 The sole ground of the village's complaint here is that the Division, after reducing the assessments on the basis of their true value, imposed an additional reduction of 15%, on the asserted authority of the decision in In re Appeals of Kents 2124 Atlantic Ave., Inc. , 34 N.J. 21 (1961), for alleged "discrimination."
In Continental's petition of appeal filed with the Bergen County Tax Board for the tax year 1969, the only reason alleged for reduction of the assessment was "Not true value." In the petition to the Division of Tax Appeals for the same year, the allegation of aggrievement was that "the said assessment is in excess of its true value" and the prayer was that the assessment "be reduced to the true value of the property." Thus, in neither tribunal was there an allegation of "discrimination," remediable under Kents. Because the issue was not raised, the claim of "discrimination" was not properly cognizable by the Division and its action in applying the 15% reduction on such basis as to the tax year 1969 is reversed. Cleff Realty Co. v. Jersey City , 41 N.J. Super. 465 (App. Div. 1956), certif. den. 23 N.J. 58 (1956); Matawan v. Tree Haven Apts. Inc. , 108 N.J. Super. 111, 116 (App. Div. 1969).
The following capsulizes that portion of the decision of the Division which sets the framework of the issue of discrimination for our consideration as to the year 1970.*fn2 The Division said:
A claim of discrimination has been made by the appellants. The allegation is based on Kents type discrimination and they request Kents type relief. The record shows that during the years 1969 and 1970, the Village of Ridgefield Park has been assessing at a common level of assessment which was less than 100 per cent. I find for that year the actual assessment was on the basis of 85 per cent of true value. I therefore find for the years 1969 and 1970 all of the assessments which have been determined here should be reduced by the sum of 15 per cent. [Emphasis added]
The "finding" that "for that [ sic ] year the actual assessment was on the basis of 85 per cent of true value" is somewhat obscure both as to "what year" was intended and as to whether it was a finding that the actual assessment of the subject property was at 85% of true value, or whether the finding referred to assessments generally. If the subject properties were indeed assessed at such percentage, there could have been no discrimination even on the Division's theory (i.e. that the "common level" was at 85%). To reach the issue presented, we shall construe the language upon the assumption that this finding was meant to assert that the "common level" was at 85% of true value. In any event, we hold that the Division erred in granting Kents relief on the record here.
In order to make out a case of actionable discrimination, these elements must be proved: (1) that the real property generally in the municipality was assessed at less than true value; (2) what the common assessment level was , and (3) the true value of the subject property upon which the common level percentage would operate. Reading Co. v.
Woodbridge Tp. , 45 N.J. 407, 426 (1965); Matawan v. Tree Haven Apts. Inc., supra , 108 N.J. Super. at 116; Feder v. Passaic , 105 N.J. Super. 157, 160 (App. Div. 1969). If there is no common level shown and there is none which the assessor is endeavoring to apply , and the assessment is substantially higher than the "average ratio" determined by the Director of Taxation, the "average ratio" may be applied under Kents , and the assessment reduced by that proportion. Matawan v. Tree Haven Apts. Inc., supra , 108 N.J. Super. at 116; Feder v. City of Passaic, supra , 105 N.J. Super. at 166.
As noted above, the Division's decision found that
There is no evidential support in the record for so much of this finding as concerns assessment at a common level less than 100%. Indeed, there was no testimony by taxpayers' experts as to a common level, and the assessor's uncontroverted testimony is that for his 12 years as assessor he has been assessing at true value.
Nor was there any showing that, as in Kents , there was no common level, toward the end that the average ratio from the ...