dissenting.
In Division 1 the majority states:
This Court has never set forth the standard of review to be applied by a superior court in reviewing whether the evidence presented to a local administrative agency or local governing body supports the grant or denial of a variance. We now hold that the any-evidence standard is the appropriate standard of review.
In so concluding, the majority does not say that OCGA § 50-13-19 (h) (5) does not apply. Instead, it says that the standard of review in that statute is the same as the “any-evidence” test. I respectfully disagree with this conclusion for the reasons advanced by former Justice Robert H. Hall in his dissenting opinion in Hall v. Ault, 240 Ga. 585, 587 (242 SE2d 101) (1978). I therefore dissent to Divisions 1 and 2 of the opinion. To the extent the cases of Dept. of Human Resources v. Montgomery, 248 Ga. 465 (284 SE2d 263) (1981) and Dept. of Natural Resources v. Union Timber Corp. 258 Ga. 873 (375 SE2d 856) (1989), referred to and relied upon a comparison of the “any-evidence” rule with a “substantial-evidence” standard, rather than the clearly-erroneous standard set forth in the statute, they may be distinguished.5 The trial court rejected the commissioners’ findings because they were not based on substantial evidence. Under the statutory standard, he was obligated to accept the commissioners’ findings unless they were “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” Because it is unclear that the proper standard was employed by the trial court, I would remand to the trial court for reconsideration.
I also dissent to Division 3 because I believe a constitutional challenge was properly raised. (See my concurring opinion in Shockley v. Fayette County, 260 Ga. 489 (1), fn. 1 (396 SE2d 883) (1990).) I would address the trial court’s ruling that the DeKalb procedures *902were unconstitutional.
Decided March 11, 1991. Peterson, Dillard, Young, Self & Asselin, G. Douglas Dillard, Dick Wilson, Jr., Thomas 0. Marshall, for appellant (case no. S90A1675). Albert Sidney Johnson, Patrick F. Henry, Jr., Susan Cole Mullís, for appellant (case no. S90A1676). Jenkins & Eells, Frank E. Jenkins III, Kirk R. Fjelstul, for appellees.The truth is, rarely does the use of one standard rather than either of the others make any difference. Most agency or lower court decisions which are supported by “any-evidence” are supported by reliable, probative and substantial evidence. Nor, as Justice Hall pointed out, does a review under the clearly-erroneous test amount to weighing the evidence or deciding credibility by the reviewing court. Moreover, permitting a broader scope of review of an agency decision by a superior court than that permitted an appellate court in reviewing a jury verdict has a rational basis. The decision of the jury comes after a consideration of legally admitted evidence and upon the application to that evidence of legal instructions from the trial court, including the definition of preponderance of the evidence and allocation of the burden of proof. And, where a motion for new trial has been employed, the jury’s decision has received the approval of the trial court, the thirteenth juror. The decisions of administrative agencies, on the other hand, are not arrived at in this time-honored and time-tested legal manner, and should not enjoy the same level of a presumption of validity.