dissenting.
The majority correctly states that our standard of review of the *628trial court’s judgment in favor of the landowners is the clearly erroneous test, but inconsistently bases its reversal of that judgment upon the existence of evidence to support the County’s decision not to rezone the property. In my opinion, application of the correct standard of appellate review mandates an affirmance of the trial court’s judgment in favor of the Landowners and against the County. Accordingly, I respectfully dissent.
“ Tn zoning matters it is of fundamental importance to distinguish between two types of cases.’ ” Moon v. Cobb County, 256 Ga. 539 (350 SE2d 461) (1986). In one type, a special permit is sought under the terms set out in the ordinance. Because the property owner relies upon the ordinance itself, the validity of the ordinance is not an issue. See Dougherty County v. Webb, 256 Ga. 474 (350 SE2d 457) (1986). In the other type, however, a constitutional attack is made against the zoning ordinance. Because the property owner attacks the ordinance itself, the presumption of constitutionality applies. See Gradous v. Bd. of Commrs., 256 Ga. 469, 471 (349 SE2d 707) (1986).
The standard of appellate review is very different for each type of case. In the case wherein a special permit is sought under terms set out in a zoning ordinance, the superior court is bound by the facts presented to the local governing body. Moon v. Cobb County, supra at 539-540. However, where, as here, a constitutional attack is made against a zoning ordinance, “[t]he superior court determines the law and facts from matters presented to it with no deference to decisions made below on either fact or law.” (Emphasis supplied.) Moon v. Cobb County, supra at 539. In the superior court, the property owner has the burden of rebutting the presumption of constitutionality by clear and convincing evidence. Gradous v. Bd. of Commrs., supra. The losing party may appeal “to this court where our standard of review as to the facts is the clearly erroneous test. [Cits.] We, of course, owe no deference to the superior court as to the law.” Moon v. Cobb County, supra at 539.
When the case is appealed, it is not the function of the appellate court to again weigh the facts and determine if there is clear and convincing evidence of invalidity. Rather, the appellate court considers the trial court findings and record below. Unless the findings are clearly erroneous, they are not disturbed on appeal. [Cit.]
City of Roswell v. Heavy Machines Co., 256 Ga. 472, 474 (349 SE2d 743) (1986). See also Alexander v. DeKalb County, 264 Ga. 362, 365 (3) (444 SE2d 743) (1994); Jones v. City of Atlanta, 257 Ga. 727, 729 (363 SE2d 254) (1988); City of Atlanta v. Standish, 256 Ga. 836, 837 *629(353 SE2d 489) (1987); Bd. of Commrs. v. Skelton, 248 Ga. 855, 857 (1) (286 SE2d 729) (1982); City of Atlanta v. McLennan, 240 Ga. 407, 409 (2) (240 SE2d 881) (1977).
Accordingly, the findings of the trial court in this case cannot be disturbed on appeal unless they are clearly erroneous. Contrary to the implication of the majority, the trial court in the instant case made thorough findings of fact, including the following: The County Planning Department reviewed the Landowners’ application under OCGA § 36-67-3, and approved it with certain conditions. At present, there is only one dwelling on each parcel, and it is not feasible to repair and insure them. The properties cannot be improved or developed under the present zoning. The current trend in the area is toward larger houses on smaller lots. While there has been no new R-85 subdivision developed in twenty years, two new R-50 developments have been established since 1985 and 1987 without any evidence that those developments have detracted from the neighborhood. The nine lots possible under R-85 zoning are not enough to support development. The proposed R-50 development would not require any through traffic and would not adversely affect the streets, schools or utilities in the area. Present zoning has led to an increase in rental properties and deteriorating conditions. The proposed rezoning is consistent with the County’s comprehensive land use plan. Based on these findings, the trial court concluded that the Landowners presented clear and convincing evidence that they have suffered a significant detriment which is not substantially related to the public health, safety, morality and welfare.
To these findings, the trial court applied the balancing test set forth in Guhl v. Holcomb Bridge Rd. Corp., 238 Ga. 322 (232 SE2d 830) (1977) and further found as follows: The existing uses and zoning of nearby property includes two adjacent R-50 developments, commercial and multi-family buildings within two-tenths of a mile, and a nearby major interchange. The property values are substantially diminished by the existing zoning. If the two tracts of land are considered separately, neither Landowner can use his land for any purpose other than one single-family house, the value of which would not justify the substantial repairs necessary to bring it up to insurance underwriting approval. Even if the properties are combined, the number of lots yielded would not support any development. The destruction of property values diminishes the health, safety and welfare of the community. Without rezoning, the properties will continue to deteriorate and there is no relative gain to the public. The properties are on a major thoroughfare adjoining R-50 developments and they are not suitable for the current zoning. By developing the properties in accordance with the predominant character of the area and allowing them to become a valuable addition to the County’s tax *630base, the rezoning will benefit both the public and the Landowners.
Decided February 17, 1997 Reconsideration denied March 13, 1997.While the evidence conflicted as to the present suitability of the properties for low-density residential use, the evidence established a downturn in viability of the properties as a low-density residential area, and a decrease in land value if the properties remained under the R-85 classification. DeKalb County v. Albritton Properties, 256 Ga. 103, 108 (1) (a) (344 SE2d 653) (1986). Indeed, the DeKalb County Planning Department itself found that “[t]he property is not economically viable as currently zoned as the density allowed versus the amount of property available for development is not cost-effective.”
[F]or . . . unlawful confiscation to occur, requiring that the zoning be voided, it is not necessary that the property be totally useless for the purposes classified. [Cit.] It suffices to void it that the damage to the owner is significant and is not justified by the benefit to the public. [Cits.]
Barrett v. Hamby, 235 Ga. 262, 266 (219 SE2d 399) (1975). Even if the land in question still retains some value as zoned, it is clear that the evidence established the required “significant detriment.” DeKalb County v. Albritton Properties, supra at 108 (1) (a). See also City of Atlanta v. Standish, supra; City of Roswell v. Heavy Machines Co., supra. There was a conflict in the evidence as to the economic feasibility of alternative uses and the impact of each use on the public health and welfare, but “the findings of the trial judge, supported by credible evidence, are not clearly erroneous.” City of Atlanta v. McLennan, supra at 410 (2). Rather than properly affirming the judgment on the basis that the trial court’s findings are not clearly erroneous, the majority, while purporting to apply the correct standard of review and not to deviate from or expand on precedent, does indeed deviate from this Court’s precedent by incorrectly reweighing the facts for itself in order to support its conclusion that the Landowners failed to present clear and convincing evidence of invalidity. City of Roswell v. Heavy Machines Co., supra. Therefore, I respectfully dissent to the majority’s reversal of the trial court’s judgment.
I am authorized to state that Justice Hunstein and Justice Thompson join in this dissent.
*631Jenkins & Nelson, Kirk R. Fjelstul, for appellant. Benjamin R Erlitz, for appellees.