concurring.
I agree with the majority opinion and write separately to point out the following:
Zoning cases fall at the outset into one of two major categories, each of which is quite separate and distinct: (1) suit by a landowner against the zoning authorities challenging the existing zoning of his or her property as being an unconstitutional taking of private property without just compensation, e.g., Barrett v. Hamby, 235 Ga. 262, 265 *250(219 SE2d 399) (1975); and (2) suit by a neighbor of rezoned property against the zoning authorities and the owner of such property challenging the rezoning. Decisions in one category are most often inapplicable to cases in the other category. This suit is in the second category.
In Cross v. Hall County, 238 Ga. 709, 711 (235 SE2d 379) (1977), also a category two case, we held: “Neighbors of rezoned property cannot invalidate the rezoning by showing that the preponderance of the evidence was against the zoning change. When neighbors of rezoned property challenge the rezoning in court on its merits, it will be set aside only if fraud or corruption is shown or the rezoning power is being manifestly abused to the oppression of the neighbors.” (Citations omitted.) There is a distinct difference between showing that the preponderance of the evidence was against the zoning change on the one hand and, on the other hand, showing by the preponderance of the evidence that the rezoning power is being manifestly abused to the oppression of the neighbors. I therefore agree with the standard adopted in Division 2 of the majority opinion.1
The neighbors here challenge the rezoning on the additional grounds that it was “spot zoning.” In my view “spot zoning,” if found, would constitute manifest abuse of the rezoning power to the oppression of the neighbors within the meaning of Cross v. Hall County, supra.
Regarding the neighbors’ claim under 42 USCA § 1983, that section (in pertinent part) authorizes a person deprived “of any rights, privileges, or immunities secured by the Constitution and laws” to sue “in an action at law, suit in equity, or other proper proceeding for redress.” The neighbors’ claim that they were denied their rights and privileges “secured by the Constitution” against unconstitutional rezoning is, at best, vague and possibly untenable.2 The majority reverses because the trial court found it lacked subject matter jurisdiction of the § 1983 claim, not because the trial court erroneously found that the complaint failed to state a claim on which relief could be granted.
*251Moreover, if, as the neighbors contend, they are entitled to damages under § 1983, supra, then they have an adequate remedy at law and are not entitled to injunctive relief under counts one and two of their complaint. Thus, it appears to me that the neighbors cannot succeed in obtaining both injunctive relief under Georgia law and monetary relief under § 1983. They must at some point elect the remedy they seek, even assuming that their § 1983 claim can be maintained on its merits (see text at footnote 2). For the reasons stated above as well as those stated by the majority, I concur in the opinion and judgment of the court.
In Lancaster v. Allen, 242 Ga. 5 (1) (247 SE2d 746) (1978), the court inadvertently referred to the “clear and convincing” burden, but that is the burden placed upon a property owner who challenges the existing zoning of his or her property. See Guhl v. Holcombe Bridge Rd. Corp., 238 Ga. 322, 323 (232 SE2d 830) (1977).
As pointed out in Cross v. Hall County, supra, 238 Ga. at 710-711, it is one thing for a property owner to show that the zoning of his property is unconstitutional, and it is an entirely different matter for a neighbor to show that the zoning of adjacent property is unconstitutional.