I dissent.
The doctrine of sovereign immunity “shall be recognized only to such extent as may be provided by statute.” Section 24-10-102, C.R.S. (1982 Repl.Vol. 10). The governmental immunity act on which the trial court relies expressly covers actions which “lie in or could lie in tort.” Section 24-10-105, C.R.S. (Addendum to 1985 Cum. Supp.). Thus, as the majority states, the act provides that sovereign immunity “shall be available to a public entity as a defense to an action for injury.” Section *101624-10-108, C.R.S. (1982 Repl.Vol. 10). However, the case here is in the nature of mandamus; it is not an action for injury, and could not lie in tort. See Jones v. Northeast Durango Water District, 622 P.2d 92 (Colo.App.1980). Therefore, the doctrine of sovereign immunity does not apply here.
In addition, I do not agree with the majority’s characterization of this action as an exercise of police power.
Although the Shermans also pled in the alternative under C.R.C.P. 106(a)(4), the essential character of their complaint was in the nature of mandamus C.R.C.P. 106(a)(2), because they sought to compel approval of their development plan by the city. Approval of the Shermans’ plan was a “non-discretionary ministerial function,” and therefore, obtaining that approval was a remedy expressly within the ambit of C.R. C.P. 106(a)(2). Sherman v. City of Colorado Springs, 680 P.2d 1302 (Colo.App.1983).
Conversely, the exercise of police power, as was at issue in Gold Run, Ltd. v. Board of County Commissioners, 38 Colo.App. 44, 554 P.2d 317 (1976), is discretionary and, therefore, is properly reviewable under C.R.C.P. 106(a)(4), not under C.R.C.P. 106(a)(2).
The legislative acts such as zoning, rezoning, or enactment of ordinances, even if improper, find their judicial remedy in the undoing of the wrongful legislation, not in money damages awarded against the state. Mountain Medical, Inc. v. City of Colorado Springs, 43 Colo.App. 391, 608 P.2d 821 (1979); Hermanson v. County Commissioners, 42 Colo.App. 154, 595 P.2d 694 (1979); Gold Run, Ltd., supra. Therefore, absent an unconstitutional “taking” of private property for public use without compensation, money damages for diminution of property value based on the theory of inverse condemnation by legislative act cannot be recovered. See Hermanson, supra. The premise of this conclusion is that such recovery and actions in inverse condemnation, if allowed, would have a chilling effect on a governmental entity’s exercise of its police power. See Agins v. City of Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25 (1979), aff'd, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980).
However, in the case at bar, the Sher-mans did not attack the city’s legislative actions, nor its exercise of police power, nor its power of eminent domain. On the contrary, they attacked the city’s nondis-cretionary exercise of a ministerial function with regard to the approval of their complying development plan. Sherman, supra. Therefore, money damages are not prohibited by the principle enunciated in Gold Run, Ltd., supra, and its progeny. Moreover, here, the only possible chilling effect would be to discourage cities from exercising discretion not afforded them. See Sherman, supra.
Accordingly, because the Shermans’ action is in the nature of mandamus, the “judgment shall include any damages sustained.” C.R.C.P. 106(a)(2). In this regard, the court has no discretion. City of Colorado Springs v. Street, 81 Colo. 181, 254 P. 440 (1927). Hence, the trial court erred in not affording the Shermans the opportunity to prove any damages which they sustained. See City of Colorado Springs v. Street, supra.
I would, therefore, reverse the judgment.