WOLFE, Judge.
This is an action in mandamus to compel the issuance of certain building permits by the Building Commissioner of University City. The person against whom the action was brought resigned as Building Commissioner, and his duly appointed successor, by his consent, in accordance with Civil Rule 52.12(g), V.A.M.R., has been substituted. After the Building Commissioner's return was filed to the alternative writ of mandamus, the parties at whose relation the writ was issued moved for a judgment on the pleadings. This motion was sustained and a peremptory writ issued. The Building Commissioner appealed.
The petition alleges that the petitioners owned certain lots in Wilson Square Subdivision in the City of University City. It alleges that they made application to the Building Commissioner for the issuance of building permits for the erection of single family dwellings, and that the application complied in all respects with the requirements of the ordinances of the City of University City.
The petition then alleges that the Commissioner refused to issue the permits on the ground that they were not approved by the Architectural Control Commission of the City of University City. This Architectural Control Commission, it is alleged, was created under the terms and conditions of Section 2013.4 of the University City Zoning Code, which is as follows:
'(1) Intent and Purpose. The intent and purpose of this section is to maintain compatibility in the exterior design and appearance of principal buildings erected within the City, so as to avoid conditions which may adversely affect the desirability of immediate and neighboring areas, and by so doing, impair the benefits of occupancy of existing buildings and property in such areas, impair the stability and value of both improved and unimproved real property, prevent the most appropriate use of areas with attendant deterioration of conditions affecting the health, safety and morals of the inhabitants thereof, deprive the City of tax revenue which it could otherwise receive, and destroy a proper balance in relationship between the taxable value of real property in various areas and the cost of municipal services provided therefor; and it is the purpose of this Section to prevent these and other harmful effects of repetitious or unsightly outward appearance in
the exterior design of buildings erected in the same vicinity, and thus to promote and protect the health, safety, morals and general welfare of the community.
'(2) Architectural Control Commission. There is hereby established a Commission to be known as the Architectural Control Commission, consisting of three members, all of whom shall be residents of the City, two of whom shall be Registered Architects, including within the term Landscape Architects, selected from a panel of not less than five, established from time to time by resolution of the City Council. They shall be appointed for terms of three years each, except that of those first appointed, one shall serve for a term of one year, one for a term of two years and one for a term of three years. Appointments to fill vacancies shall be for the unexpired term.
'Said Commission is hereby vested with the following jurisdiction and authority:
'a.) Powers, Duties, Procedure. All applications for Building Permits for any principal building within the City, filed with the Building Commissioner, shall be referred to said Commission before a building permit is issued. It shall be the duty of the Commission to examine the plans for said proposed building, particularly with reference to the exterior design thereof and shall prove or disapprove the same. In making its determinations, the Commission shall be guided by the intent and purpose of this Section and shall approve the plans for said buildings, provided it finds that they are in harmony with and will promote compatible architectural design in the same vicinity and thus promote and protect the health, safety, morals and general welfare of the community. The Commission may, if it desires, hear the applicant for the building permit in question and the owner of the lot upon which it is proposed to erect the structure in question, together with any other persons, either residents or property owners, desiring to be heard, giving such notice of the hearing as they may deem sufficient. Should the Commission disapprove the plans of the applicant, it shall be its duty to suggest to the applicant any alteration in the design or plan of said building which will make it comply with the conditions necessary for approval, and shall then approve the same in the event such alterations and changes are made by the applicant. The Commission shall note upon the plans in writing, its approval or disapproval of the design of such building and no permit shall be issued therefor by the Building Commissioner unless the plans have the approval of the Commission.
'b.) Meetings. Said Commission shall meet at the call of the Chairman, elected from among the appointed membership of the Commission, and shall pass upon all applications then pending with the Building Commissioner. Said meetings or hearings conducted by the Commission may be adjourned from time to time, but for not more than forty-eight hours, and within forty-eight hours after the close of the meeting or hearing, the Commission shall in writing approve disapprove the plans submitted by the applicant and shall so notify the Building Commissioner. All decisions shall be made by a majority of the members thereof and two members shall constitute a quorum at any meeting or public hearing.'
It is alleged that the provisions of Section 2013.4 are invalid, illegal, and void, in that they are in excess of the powers granted by statute, and that the City of University City was without authority to enact that section.
It is further alleged that it is vague and provides no standard and no uniform rule by which to guide the actions of the purported Architectural Control Commission, and that the section is unconstitutional. The petition concludes with a prayer that the Building Commissioner be ordered to issue building permits.
The Building Commissioner's return admitted that the petitioners were the owners of the property and that he was the Building Commissioner of University City. It
also admits that the ordinance of University City contained the provisions relating to the erection of buildings and structures set forth in the petition. It denies that the application for the building permits complied with the ordinance of University City in...
