¶1concurring.
¶2I join the court’s opinion and judgment in this case, but I deem it appropriate to state the reasons for my concurrence.
¶3This case presents, as I view the primary issue, a very difficult problem for the judiciary: the application of the constitutional concept of "substantive due process of law.” Substantive due process relates to a determination of whether the government has or has not exceeded its power in regulating life, liberty, or property. Procedural due process relates to the procedural requirements that must be followed by the government in allowing it to regulate life, liberty, or property, in those instances where it has "the power” to do so.
¶4Our Georgia Constitution provides: "No person shall be deprived of life, liberty, or property, except by due process of law.” Code Ann. § 2-103. The equivalent of this is also contained in the Fifth and Fourteenth Amendments to the Federal Constitution. Our Georgia Constitution also provides: "Legislative acts in violation of this Constitution, or the Constitution of the United States, are void, and the Judiciary shall so declare them.” Code Ann. § 2-402.
¶5With respect to zoning, the Georgia Constitution *268provides: "The General Assembly of the State shall have authority to grant the governing authorities of the municipalities and counties authority to pass zoning and planning laws whereby such cities or counties may be zoned or districted for various uses and other or different uses prohibited therein, and regulating the use for which said zones or districts may be set apart, and regulating the plans for development and improvements on real estate therein.” Code Ann. § 2-1923. The statutory grant of power by the General Assembly to the municipalities and counties to enact zoning regulations is contained in Code Ann. § 69-1207. A portion of this statutory grant of power reads as follows: "Such regulations shall be made with reasonable consideration, among other things, of the character of a district and its peculiar suitability for particular uses, and with a view to promoting desirable living conditions and the sustained stability of neighborhoods, protecting property against blight and depreciation, securing economy in governmental expenditures, conserving the value of buildings and encouraging the most appropriate use of land and other buildings and structures throughout such municipality or county or both.”
¶6Under our Georgia Constitution and statutes it is my view that zoning regulations enacted by local governing bodies are valid unless they are arbitrary and unreasonable to the extent of substantially depriving a person of his liberty and property. An arbitrary and unreasonable zoning regulation, as so measured, is an excessive exercise of legitimate governmental power, and it is therefore violative of what I call "substantive due process of law.”
¶7The problem with the substantive due process concept is that the decision makers, those who decide whether a zoning regulation is arbitrary and unreasonable, are mere men whose subjectivity is seldom exceeded by their ability to be objective. This is true of local governing officials, legislators, and judges, both trial and appellate.
¶8Nevertheless, it is clear to me that in our form óf government the final decision-making function in the area of "substantive due process of law” has been reposed *269in the judiciary. And I see it as a duty of the judiciary under the Georgia Constitution to make the determination of whether a unit of government has exceeded its power so as to substantially deprive a citizen of his liberty and property. I realize that a judge or group of judges will not attain objectivity, but perhaps the framers of our government believed that just a little bit more objectivity could be attained in the judicial system rather than in the arena of conflict and volatile emotions.
¶9The application of the "substantive due process” concept by the judiciary has been a subject lengthily discussed and debated throughout this century. The late Mr. Justice Black was the most vocal opponent of the concept in the Supreme Court of the United States. See his dissenting opinion in Adamson v. California, 332 U. S. 46, 68-123, and his concurring opinion in Rochin v. California, 342 U. S. 165, 174-177. However, he was never able to muster a majority for his position, and recent decisions indicate that substantive due process is still a viable concept. See Stone, Introduction: Due Progress of Due Process, 25 Hastings Law Journal 785, and Vieira, Roe and Doe: Substantive Due Process and the Right of Abortion, 25 Hastings Law Journal 867.
¶10As I read this record, the zoning ordinance applied to the land in this case is arbitrary and unreasonable to the extent of substantially depriving a citizen of his liberty and property; the application of the ordinance to the property in this case amounts to an exercise of governmental power in an excessive manner; and the application of the ordinance to the property in this case is violative of the Due Process Clause of the Georgia Constitution.
¶11dissenting.
¶12The majority opinion is a sharp departure from the view taken historically by this court in reviewing zoning cases. I believe this decision invades the constitutional province of the county governing (zoning) authority. What the court in effect is holding is that it will now review any local zoning decision based on conflicting evidence to determine whether "it bears a substantial *270relation to the public health, safety, morality or general welfare.” This is an awesome task, — far beyond the traditional court review in Georgia, and far beyond even the majority opinion of the 4 to 3 decision of this court in Tuggle v. Manning, 224 Ga. 29 (159 SE2d 703).
¶13The implication of the present decision is that every local zoning authority in Georgia (potentially every county and municipality in the state) must now justify to the court every disputed zoning decision it makes. The great danger inherent in this ruling is that it will necessarily substitute this court’s judgment for the local governing authority’s judgment when the evidence is in conflict, as it is in the present case.
¶14Since this decision moves the final exercise of zoning power out of its constitutional resting place into the hands of the judiciary, I must dissent to it. The courts will not be able to handle the floodtide of litigation which could well result from this far-reaching decision. My view of the court’s role in zoning matters is summarized in Olley Valley Estates v. Fussell, 232 Ga. 779, 786 (208 SE2d 801). I adhere to the understanding expressed there of the Georgia cases which I think are sagacious and should continue to be followed by this court.
¶15I am authorized to state that Justice Jordan joins in this dissent.