dissenting:
I dissent because in my view the city council’s action in denying the Shermans’ development plan was the exercise of a “non-diseretionary ministerial function.” In the first of two appeals heard regarding this case, the court of appeals found that Colorado Springs has by ordinance
established a zone wherein the use to which the Shermans proposed to put their land is a use permitted by right and not a conditional use.... Thus, if a plan submitted complies with all the requirements of the ordinance, and all the procedures for plan approval have been completed by the applicant, approval is not a matter which lies within the discretion of the approving body.
Sherman v. Colorado Springs Planning Comm’n, 680 P.2d at 1304 (Colo.App.1983) (Pierce, J., dissenting) (citing Winters v. *298Commerce City, 648 P.2d 175 (Colo.App. 1982); 3 A. Rathkopf, Law of Zoning and Planning § 44.05[1]). I agree with this interpretation.
The appropriate vehicle to compel the city council to perform their duty to approve the plan is a C.R.C.P. 106(a)(2) motion for a writ of mandamus. Mandamus is the proper remedy:
Where the relief sought is to compel an inferior tribunal, corporation, board, officer or person to perform an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, officer, or person. The judgment shall include any damages sustained.
Because the city council had no discretion to deny the Shermans’ application, the majority’s conclusion that certiorari review was proper is erroneous. Certiorari review is only available “[wjhere an inferior tribunal ... exercising judicial or quasi-judicial functions, has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy_” C.R.C. P. 106(a)(4).
The court of appeals found that the city council had abused its discretion because the council had exercised jurisdiction where it had none. The council’s jurisdiction stems from the Colorado Springs City Code which provides, in section 14-3-127 (1980),1 that development plans may be approved or rejected depending upon their compliance with the requirements of the city code. Therefore, the council has jurisdiction' to reject a non-conforming plan or approve one that conforms. The problem here is not that the council had no jurisdiction to review the Shermans’ plan to ensure that it conformed to the zoning requirements, but that, in exercising its jurisdiction, the council erred when it denied the Shermans’ application. Thus, lack of jurisdiction was not a proper basis for finding, as the court of appeals did, that the city council had abused its discretion.
Since the case is in the nature of mandamus and not certiorari, the shield of sovereign immunity is not available. The sovereign immunity act relied upon by the majority covers actions which “lie or could lie in tort” and is available as a defense in an action for injury. See § 24-10-105,10 C.R. S. (1982). A mandamus action is not an action for injury and consequently cannot lie in tort. See Jones v. Northeast Durango Water Dist., 622 P.2d 92 (Colo.App.1980). Thus sovereign immunity does not prevent the Shermans from bringing this mandamus action against the city council.
In my view, Judge Pierce properly analyzed the issues in his dissent. See Sherman v. Colorado Springs Planning Comm’n, 680 P.2d at 1304 (Colo.App.1983) (Pierce, J., dissenting).
I am authorized to say that Justice KIRSHBAUM and Justice VOLLACK join in this dissent.
. This provision of the Colorado Springs City Code has since been amended as section 14-3-2706. The substantive provisions of sections 14-3-127 and 14-3-2706 are substantially identical.