concurring.
I join the court’s opinion and judgment in this case, but I deem it appropriate to state the reasons for my concurrence.
This 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.
Our 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.
With 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.”
Under 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.”
The 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.
Nevertheless, 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.
The 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.
As 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.