ONE of the more unusual outcomes in the approval of a high rise project envisioned for the old Billings Chevrolet site along Interstate 880 is a waiver of the normal park "in lieu" fees other developers pay. Milpitas laws specify payment of a fee for parks based on the number of residential units unless a developer provides an actual full size park site or even a smaller park along with improvements.

In the case of the Landmark Tower, an 18-story structure with 375 residential units and ground floor commercial spaces, the fee was calculated at $4.6 million for the park fund. The developer, T.P. Pham, thought it should be less because his units would have smaller households than a normal subdivision. His contention was that the average density expected was for an average of less than two persons per apartment compared to about 2.5 persons for a condo or home. Thus his fee would only be $2.1 million. This difference of opinion is not infrequent in the city and school district's calculations of such fees.

What is really unusual about the elimination of the city park fee entirely is that the city will be calling the roof garden on the 18th floor a public park.

The city hopes that a separate entrance to the building for users of the "park" and a permanent easement binding any future owners are sufficient to guarantee the facility will guarantee access.

As a practical matter, how likely is it that the public would ever use this kind of recreational area? Occupants


(renters or purchasers) of apartments who will pay a premium for recreational and rooftop garden amenities, may certainly have a preference in such use. Conflicts would seem inevitable.

Worse still, there is a good chance the entire concept could turn into a pie-in-the-sky laughing stock.

The city planning staff was ordered by the council to help bring costs down for the project whose estimated half a billion cost is pretty hard to finance in today's tightened credit economy. The city council threw out any park fee at all using the skypark model to justify it. At the meeting last month where this was approved the city council also OK'd the substitution of a number of high cost materials to help out.

There is undoubtedly concern by the council that the old Chevrolet site has been sitting empty for a long time and getting a productive project could be a tax benefit to the city. But everyone seems to agree that this is one project that may be a long way down the time track.

It would appear that a more logical solution would be for the city to charge the lower park fee the developer's own consultants came up with. That would have yielded some $2.1 million to be used for park acquisition or improvement anywhere in the city. Instead the council in waiving the entire $4.6 made a friend of the developer but saddled the community with a potentially difficult kind of park concept to administer for a long time to come.