dissenting.
I respectfully dissent for the reason that I would hold the Macon Association for Retarded Citizens (MARC) is immune from local zoning ordinances in its performance of services mandated by state law which, but for the program of MARC, would be performed by the state. I base this in part on the rationale of Temple Terrace v. Hillsborough Assn. for Retarded Citizens, 322 S2d 571 (Fla. App. 1975), rejected by the majority. I would not reach the equal protection argument considered by the majority.
1. The Florida court in Temple, supra, found that the Association was performing services which the state was required to do under state law; the agency closely supervised the services provided by the Association; and the Association’s services supplemented those provided statewide by the agency. (The court went on to say that the trial court, on remand, should apply a “balancing of the interests” test to determine if the Association enjoyed governmental immunity from local zoning laws. This new “balancing of the interests” test need not be adopted, because the old tests are adequate to resolve the issues in this case.)
The rationale of Temple, supra, leads to the conclusion that *491MARC’s claim to governmental immunity is the same as the state’s. As in Temple, MARC has contracted with the state agency, DHR, to provide the group home services. The contract provides for payment of state funds to MARC for salaries of personnel and maintenance of the residence. (The construction of the residence is to be financed by a federal grant from HUD.) State law expresses a policy for community placement of mentally retarded individuals, OCGA § 37-5-2 (Code Ann. § 99-3302), and places on county boards of health the obligation of providing such community services, OCGA § 37-5-5 (Code Ann. § 99-3305). Should a county board fail to meet its obligation, however, DHR is empowered to establish community services. OCGA § 37-5-7(b) (Code Ann. § 99-3307). One approved method of providing such services is for DHR to contract with private associations like MARC. OCGA § 37-l-20(b)(3) (Code Ann. § 88-603). See also, 1973 Opinions of the Attorney General of Georgia, 73-164. Operation of group homes is regulated and closely monitored by DHR. See Georgia Department of Human Resources, Standards for Group Homes for the Mentally Retarded, November 1976.
From these authorities, the conclusion is easily reached that MARC, although a private association, is performing functions which are mandated by state law and would otherwise be performed by the state. Therefore, MARC is entitled to invoke the doctrine of governmental immunity to the same extent the state would be entitled were it operating the group home.
2. The question then becomes whether there would be immunity from the zoning ordinance if the state were operating the group home rather than MARC.
As discussed in the majority opinion, there are four traditional tests and one recent test in use to determine whether a state activity is immune from local zoning ordinances. The traditional tests are: the superior-sovereign test, the governmental-proprietary test, the eminent-domain test, and the statutory-guidance test. The more recent test is one of balancing the interests. See Note, 84 Harv. L. Rev. 869 (1971). I would hold that overriding these tests is the principle that the clearly established public policy of the state may not be frustrated by local control. Thus, McQuillian writes: “On functions of statewide interest and concern, the general rule is that if the municipalities are not given specific authority to take over the function, the municipalities cannot thwart the state from performing its duty. Municipal zoning ordinances cannot be used to frustrate the implementation of state policy.” (Citing Region 10 Client Management v. Town of Hampstead, 120 N. H. 885 (424 A2d 207) (1980)). Courts holding that operation of a state-supported group home is entitled to immunity include Region 10 Client Management, *492supra; Berger v. State, 71 N. J. 206 (364 A2d 993) (1976); Connors v. New York State Assn. of Retarded Children, 82 Misc. 2d 861 (370 NYS2d 474) (1975); Ellis v. Liddle, 520 SW2d 644 (Mo. App. 1975) (state policy preempts local ordinance); City of Baltimore v. State Dept. of Health &c. Hygiene, 38 Md. App. 570 (381 A2d 1188) (1978).
Georgia statutes express a strong policy in favor of community placement of mentally retarded persons. Chapter 5 of the Mental Health Code, enacted by 1972 Ga. Laws 700, is entitled “Community Services Act for the Mentally Retarded.” OCGA § 37-5-2 (Code Ann. § 99-3302), entitled “Declaration of Policy,” states: “Since the State of Georgia accepts a responsibility for its mentally retarded citizens and an obligation to them which it must discharge, facilities, programs, and services shall be made available to meet the needs of each mentally retarded person during his entire lifetime. The primary purpose of this chapter shall be to provide community-based alternatives to total institutional care so that mentally retarded individuals can continue to live in their home communities.” (Emphasis supplied.) The state’s commitment to deinstitutionalization and community placement of mentally retarded persons is further reflected at OCGA § 37-4-121 (Code Ann. § 88-2503.21): “It is the policy of the state that the least restrictive alternative placement be secured for every client at every stage of his habilitation. It shall be the duty of the facility to assist the client in securing placement in noninstitutional community facilities and programs.” The Community Service Act grants to DHR “all powers necessary to effectuate the purposes” of the Act. OCGA § 37-1-20 (b)(13) (Code Ann. § 88-603).
State policy favoring community placement of mentally retarded citizens can also be found in pronouncements of the judicial and executive branches of government. This court’s decision in Douglas County Resources v. Daniel, 247 Ga. 785 (280 SE2d 734) (1981), indicated a strong preference for community placement. In the executive branch, The Governor’s Policy Statement (Office of Planning and Budget 1982) concludes: “Community-based services must continue to be the foundation of Georgia’s service delivery system . . . consistent with the goal of . . . least restrictive environment.” Id. at 44-45. See also, Status Report on the Development of Mental Retardation Community Residential Services (DHR 1982); Standards for Group Homes for the Mentally Retarded (DHR 1976).
These strong statements of policy favor MARC’s claim of governmental immunity from operation of the Bibb County ordinance. To allow Bibb County to “zone out” the proposed group home would unquestionably frustrate the implementation of a *493clearly articulated state policy. See Region 10 Client Management, Inc., supra. The proposed land use is functionally equivalent to uses already allowed in the zoned districts, that is, single family residential. As in Douglas County, supra, the surrogate parents and mentally retarded clients will function as a single housekeeping unit, contributing to upkeep, household chores, etc. The outward physical appearance of the group home (and with a few exceptions, the interior) will be identical to other homes in the neighborhood. The house will cost $133,000 to build. Thus the group home should be unobtrusive and have little, if any, adverse effect on the surrounding neighborhood.
I would reverse.