The opinion of the court was delivered by: Kahn, J.t.c.
This matter having come before this court on defendant municipality and plaintiff taxpayer's motions for partial summary judgment. Taxpayer filed a complaint seeking modification of Roseland's 1996 Chapter 123 ratio in conjunction with local property tax appeals for its ten large office building properties located in the Borough of Roseland *fn1. All ten Roseland properties are in dispute for the 1996 tax year and were direct appeals to this court.
 The Borough of Roseland filed a motion for partial summary judgment to dismiss those counts in taxpayer's complaint seeking modification of Roseland's 1996 Chapter 123 ratio promulgated by the Director, Division of Taxation. The municipality also sought dismissal of taxpayer's request to re-open the 1996 tax appeals on behalf of all Roseland taxpayers, which was granted at oral argument for the reasons set forth on the record.
Taxpayer filed a cross-motion for partial summary judgment for this court to determine whether one commercial sale was improperly included in Roseland's 1996 Chapter 123 ratio, whether that same sale substantially skewed the ratio, and ultimately, seeks to revise Roseland's 1996 Chapter 123 ratio.
For the reasons hereinafter set forth, all motions for partial summary judgment are denied because material facts are in dispute. See Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520 (1995).
"The `Chapter 123 ratio' is the average ratio of assessed value to market value of all property in a town or tax district." Glen Wall Assoc. v. Township of Wall, 99 N.J. 265, 271, 491 A.2d 1247, 1250 (1985) citing to N.J.S.A. 54:51A-6 and Murnick v. Asbury Park, 95 N.J. 452, 460 (1984.) When promulgating the ratio, the Director reviews "sales and assessed values within the taxing district, exclusive of twenty-seven categories of deed transactions." Murnick, supra, 95 N.J. at 460 referring to N.J.A.C. 18:12-1.1(a)(25). N.J.A.C. 18:12-1.1(a) enumerates twenty-seven categories of deed transactions that must be excluded when "determining assessment-sales ratios pursuant to N.J.S.A. 54:1-35.1 et. seq." Generally, such transfers should be excluded from the ratio's computation; however, such transfers "may be used if after full investigation it clearly appears that the transaction was a sale between a willing buyer, not compelled to buy, and a willing seller, not compelled to sell, and that it meets all other requisites of a usable sale." N.J.A.C. 18:12-1.1(b); See also 1530 Owners Corp. v. Borough of Fort Lee, 135 N.J. 394 (1994).
Generally, sales are "usable if they constitute an arms-length transaction that reflects the market value of the property." 1530 Owners Corp., supra, 135 N.J. at 398; See N.J.A.C. 18:12-1.1. In order to prove a sale should have been excluded, a taxpayer: must demonstrate not simply that the challenged sale appears to fall within the non-usable category and that the Director did not make a full investigation before using it. Rather, the taxpayer must show that inclusion of the sale in determining the ratio was in fact improper because the sale price was not made at fair market value.
[1530 Owners Corp., supra, 135 N.J. at 404.]
On or before October 1 of each year, "the Director of the Division of Taxation is required by law to promulgate his Table of Equalized Valuations..." Handbook for N. J. Assessors, §1002.4, X-19 (June 1980); see also N.J.S.A. 54:1-35.1. Each New Jersey municipality generates an average true value of its real property from real property sales within the municipality. Handbook for N.J. Assessors, supra, at X - 15. The current year true value, or new true value, is cultivated yearly and "averaged with the prior year's average true value of real property, after adjustment, to arrive at the final new average true value for each particular year." Id. at X-15 - X-16. The sampling period for determining the current year true value is comprised of "sales occurring during the sampling period from July 1 in each year through June 30 of the following year..." Id. at X-16.
The undisputed facts are: 1) the average assessed value to true value of real property applicable to the taxing district of the Borough of Roseland for the 1996 tax year as calculated by the Director, Division of Taxation was 30.43%; and, 2) when compiling the Table of Equalized Valuations, the Director included one Class 4 (commercial/industrial) property sale as a usable sale. This commercial property, located at 563 Eagle Rock Avenue, had a 1994 assessment of $523,900. Subsequently, 563 Eagle Rock Avenue sold on June 23, 1994 for $675,000. Since the deed was not recorded until July 13, 1994, this sale was included in the sampling period for Roseland's 1996 Chapter 123 ratio. After the sale of 563 Eagle Rock Avenue, the property's assessment was significantly reduced via settlement of a property tax appeal. The sale property's assessment was reduced by way of Essex County Tax Board Judgment dated July 18, 1995 to $248,900.
Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520 (1995) articulated the revised standard for summary judgment. The Supreme Court pronounced hen deciding a motion for summary judgment under Rule 4:46-2, the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion Judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
Thus, a court should grant summary judgment when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2. "The court must accept as true all the evidence which supports the position of the party defending against the motion and must accord him [or her] the benefit of all legitimate inferences which can be deduced therefrom, and if reasonable minds could differ, the motion must be denied." Brill, supra, 142 N.J. at 535, citing to S. Pressler, Current N.J. Court Rules, R. 4:40-2 comment (1991)(other citations omitted).
Both motions for partial summary judgment are denied because material facts surrounding the controversial sale are in dispute. While the taxpayer has set forth sufficient evidence to rebut the presumptive validity of the common level of assessment established by Chapter 123, this ...