In Re Melgar Enterprises, Inc.

151 B.R. 34, 1993 Bankr. LEXIS 297, 23 Bankr. Ct. Dec. (CRR) 1681, 1993 WL 49920
CourtUnited States Bankruptcy Court, E.D. New York
DecidedFebruary 22, 1993
Docket8-19-70903
StatusPublished
Cited by17 cases

This text of 151 B.R. 34 (In Re Melgar Enterprises, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Melgar Enterprises, Inc., 151 B.R. 34, 1993 Bankr. LEXIS 297, 23 Bankr. Ct. Dec. (CRR) 1681, 1993 WL 49920 (N.Y. 1993).

Opinion

DECISION

CONRAD B. DUBERSTEIN, Chief Judge.

This matter is before the Court on the motion of the Debtor, Melgar Enterprises, Inc. (“Melgar” or the “Debtor”), which seeks an order pursuant to 11 U.S.C. §§ 105 and 506(a) and Fed.R.Bankr.P. 3012 determining the value of the secured claim of Amber Shires Limited Partnership (“Amber Shires”). This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b). For the reasons hereinafter set forth, the Court finds the value of the secured claim of Amber Shires to be $5,642,000.

FACTS

The Court has already discussed the facts leading up to the Debtor’s bankruptcy in a decision dated May 12, 1992, and reported as In re Melgar Enterprises, Inc., 140 B.R. 43 (Bankr.E.D.N.Y.1992). The Debtor is a corporation formed to develop and market approximately 212 acres of land located in the Village of Lemont (“Lemont”) in Cook County, Illinois. The Debtor purchased the property in December of 1987 for approximately $7,150,000 ($32,949 per acre). Amber Shires is a secured creditor holding a valid, mortgage lien on the subject property and is owed in excess of $6,955,286.

In 1986, the prior owners of the subject property entered into an Illinois State Court ordered stipulation with Lemont which provided for the development of the property (the “Consent Decree”). The Consent Decree designated the property as a Planned Unit Development (“PUD”). According to the Debtor, the PUD approves and provides for all necessary zoning, stabilizes certain fees at 1986 rates and allocates and pre-approves certain licenses including those for restaurants and liquor. Additionally, the PUD authorizes a higher density of development than other similar developments in the area. The Consent Decree and PUD outline development of the property as follows:

(1) 68 acres for 206 single family residential lots;
(2) 40 acres, for 278 townhouses;
(3) 30 acres for 276 manor homes;
(4) 9 acres for 120 condominium units;
(5) 9 acres for 120 apartment units;
(6) 10 acres allocated to 50,000 sq. ft. of office and commercial space;
(7) 16 acres for 90,000 feet of commercial space; and
(8) 30 acres for 227,000 sq. ft. of light industrial and research space.

On December 31, 1991, the Debtor filed a petition for relief under Chapter 11 of the Bankruptcy Code in this Court. Following the expiration of the Debtor’s exclusivity period pursuant to § 1121 of the Bankruptcy Code, Amber Shires filed a liquidating plan of reorganization on June 9, 1992. 1 The Debtor filed its plan of reorganization on July 16, 1992. The Debtor’s plan involved developing the infrastructure of the *36 68 acres allocated to single family residences and then selling the remaining lots within that area to building contractors or potential homeowners.

Hearings were subsequently held before this Court on both plans and disclosure statements. Thereafter, both Amber Shires and the Debtor amended their respective plans and disclosure statements. On October 5, 1992, the Court approved each party’s disclosure statement. On October 29, 1992, the Debtor filed the present motion to value the secured claim held by Amber Shires. Both parties submitted appraisals of the subject property. On December 21,1992, the Court entered a scheduling order directing the parties to submit memoranda of law regarding the appropriate methodology for determining the value of the property, addressing the contents, findings and conclusions of each appraisal.

A. Amber Shires’ Appraisal

The Amber Shires appraisal (the “McCann appraisal”) was performed by William A. McCann, M.A.I. and Philip L. Groebe. In conducting the appraisal, McCann examined Cook County, in which the subject property is located, and five other counties comprising the Chicago Metropolitan Area (the “CMA”). He found that the majority of growth in the CMA was taking place not in Cook County but rather in DuPage County and the other counties. McCann characterized land development in Lemont Township as being slow in comparison to other Chicago area development. He supported this conclusion by explaining that the presence of the Moraine Valley makes Lemont Township a less desirable area to live in than residential communities located to the North of the property in DuPage County.

In terms of the subject property, McCann noted that near the subject site, significant amounts of vacant, zoned land were available with utilities capable of supporting a full range of residential, commercial and industrial/manufacturing uses. Additionally, he observed that further engineering and architectural approvals may be needed as significant problems exist which are not covered by the PUD.

After evaluating the market conditions and the area, McCann found that the proposed use of the site by the Debtor was not currently feasible or even likely to occur in the reasonably foreseeable future. McCann based this conclusion on the fact that: (1) the market for residential housing is very soft as many areas are in default and land prices have been further depressed by recent sales at auction; (2) competing office and research developments along established highways will prevent the site from supporting such uses; and (3) the rural nature of Lemont combined with the current population density is not enough to support commercial development at the subject property.

It was McCann’s opinion that industrial development would ultimately be unsuccessful as a result of competition from already completed industrial parks having superior expressway access. Thus, he felt that the acreage zoned industrial should be developed as residential even though this would require modifying the PUD.

In light of the foregoing, McCann concluded that the highest and best use 2 of the property as of October 26, 1992, was primarily for residential development rather than development in accordance with the PUD. Although designating the property as residential would require changing the PUD, he felt that such a modification would yield the highest value for the property. 3

Since McCann determined the highest and best use of the property would be accomplished through residential development, he therefore valued the property in its present condition as vacant land. To properly value vacant land, McCann chose *37 to utilize a sales comparison approach.

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Bluebook (online)
151 B.R. 34, 1993 Bankr. LEXIS 297, 23 Bankr. Ct. Dec. (CRR) 1681, 1993 WL 49920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-melgar-enterprises-inc-nyeb-1993.