The Seven-Story Building Willow Glen's Zoning Map Didn't See Coming

The Mercury News reported that San Jose Planning Commissioner Michael Young said on March 11, 2026, "There's no question the developer has the legal ability to do the project," before the commission voted to deny an appeal of a seven-story apartment building at 940 Willow St.

Young didn't mean the building fit the zoning. It didn't. He meant that its preliminary application was filed in June 2023, while San Jose was out of compliance with state housing law, and that filing date counted for more than anything on the city's map. If you're comparing Willow Glen with other neighborhoods, this matters more than any median price. A zoning check is the usual way to learn what could go up near a home you're considering, and for some Willow Glen parcels that check gives the wrong answer.

What the map said about 940 Willow Street

Redco Development, based in San Francisco, plans a 126-unit mixed-use building near Willow Street and Kotenberg Avenue. It would replace a 5,500-square-foot commercial building that now houses a liquor store. The plans call for seven stories with about 1,626 square feet of retail. The apartments break down like this:

Ten units are set aside for very-low-income households and ten for moderate-income households.

The Mercury News reported that under the site's commercial zoning, the project could have been limited because that designation would have required 100% affordable housing. Anyone who read that zoning and expected a small commercial building to stay small had good reason to. What they couldn't see was the filing date.

The eleven months that decided it

The Builder's Remedy is part of California's Housing Accountability Act. In a city without a compliant housing element, a project that includes some affordable units can go forward even if it doesn't follow local zoning and planning rules. The state Department of Housing and Community Development, or HCD, explains that eligibility depends on when an application is filed. A qualifying preliminary or complete application submitted while the city was out of compliance keeps its Builder's Remedy status even after the city comes back into compliance.

Here is San Jose's timeline, from HCD's March 19, 2024 notice and the Mercury News report on the project:

The window closed in January 2024, but 940 Willow St. didn't get its Planning Director approval until December 3, 2025. That gap is the point. Projects filed during those eleven months are still moving through approvals, appeals and court more than two years later, while the zoning map shows rules they don't have to follow.

Why a design appeal couldn't change the outcome

David Fox, a landscape architect who used to serve on the Campbell Planning Commission, filed the appeal. He argued that the city could follow state law and still apply its own standards. He asked the commission to add four objective standards, including:

• A five-foot landscape buffer
• Downward-facing lights
• Flat roofs

The project's attorney, Dan Golub of Holland & Knight, said the developer had made some changes after hearing from residents. He said the requested setback would have required a significant redesign, and that Builder's Remedy projects are carved out from city standards. He summed up his position this way:

"Even though the law is clear that you may not disapprove this project for its inconsistency with the general plan and zoning, the appellant says you should approve it on the condition that it be made to comply with the general plan and zoning. I think it comes down to the same thing at the end of the day and that's a disapproval of the project on a ground that the state law doesn't permit."

The commission's vote showed the limit for neighbors. Even a carefully argued appeal over setbacks and lighting had little room to work. Maren Sederquist is president of the Willow Glen Neighborhood Association. She told the commission that more than 1,800 people had signed a petition opposing the project. She also said she supports affordable housing, but that residents shouldn't bear the consequences of San Jose missing its housing element deadline.

The question now before a judge is about sewers

The Builder's Remedy limits a city's power to reject qualifying projects. One exception remains: the city can still act when public health or safety is threatened. The next challenge targeted that exception.

A resident sued in Santa Clara County Superior Court on April 17, 2026, arguing that the city's sewer capacity analysis was flawed. The suit says that analysis supported a certification that let the project skip additional environmental review. It asks the court to effectively halt the project until an independent inspector clears the site. At the March hearing, the resident asked the city to show that the added load wouldn't cause sewage to back up.

As of San José Spotlight's report published May 1, 2026, there was no ruling. We found no later public report of a decision, building permit or construction start. If you're considering a home within sight of this parcel, that uncertainty belongs in your thinking.

How far the pipeline reaches

940 Willow St. wasn't the only project filed in the window. The Real Deal, citing the Silicon Valley Business Journal in January 2024, reported that San Jose received 29 preliminary applications and 14 formal Builder's Remedy applications before the state approved its housing element. That count comes from news reports, not a city register, so treat it as a sense of scale rather than a final list.

At least one other Builder's Remedy project is close by. Fox also worked on one at the corner of Meridian Avenue and Dry Creek Road. Neighbors there dropped their appeal after the developer listened to their concerns and changed the design. The two projects ran under the same law and ended differently. One neighborhood had its concerns reflected in the design through talks with the developer. The other spent its effort on an appeal the commission said it couldn't grant on the requested grounds.

The rules have also changed for newer filings. AB 1893, signed in September 2024, spells out which objective standards can apply to Builder's Remedy projects. It bars standards that would make a qualifying project infeasible and says these projects don't need a general plan amendment or rezoning. Projects deemed complete before January 1, 2025 can choose the old rules or the new ones. In practice, projects in the pipeline aren't all governed by the same version of the law.

Projects on the conventional track show how far ahead a pending application can signal what's coming. At Tamien Station, 1197 Lick Avenue, Phase 1 opened January 23, 2026, with 135 affordable apartments. Phase 2 is a proposed four-story, 132-apartment building from CORE Development and Republic Urban. It went to a city community meeting on July 14, 2025. The Mercury News reported on September 16, 2026 that construction is set to begin in the second quarter of 2027. Projects like Tamien Phase 2 can appear in planning records years before any construction fencing goes up.

What to pull before writing an offer

1. Look up pending planning applications on and near the block through the City of San José's planning department records, not just the parcel's zoning designation.
2. For any application you find, note when it was first filed. A preliminary application filed between February 1, 2023 and January 28, 2024 may carry Builder's Remedy eligibility.
3. Check for open appeals or lawsuits. 940 Willow St. has been through both.
4. Read the staff report and hearing record if one exists. Unit count, height and retail space are written there long before a building goes up.

None of this replaces advice from a land use attorney on a specific parcel. It does replace the assumption that the zoning map tells you everything.

FAQ

Can a new Builder's Remedy application be filed in San Jose today? HCD found San Jose's housing element substantially compliant as of January 29, 2024, which closed the window that 940 Willow St. used. Projects already filed in that window keep their eligibility.

Is 940 Willow St. under construction? We found no public report of a construction start. The latest coverage, from May 1, 2026, describes a pending sewer capacity lawsuit with no ruling.

Does a Builder's Remedy project ignore every city rule? No. AB 1893 still allows some objective standards. The Mercury News reported that a city can still act when public health or safety is threatened, and that is the exception the 940 Willow lawsuit is testing.

If you're weighing a Willow Glen home near a commercial corridor, Andy Sweat can pull the planning history for the surrounding parcels before you write an offer. If you own nearby, start with an instant home valuation so you know where you stand.

For recent sales and street-by-street context, see Andy's Willow Glen sales and market experience.

This article is general information, not legal, tax or financial advice. Consult a qualified professional about your situation.