The opinion
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Krjenzler, P. J.,
concurring. I concur in the judgment of reversal which holds that an attack on the constitutionality of a zoning ordinance may be made in an appeal from an administrative agency under Chapter 2506 R. C., but I believe that it would be more consistent with the law to hold that a declaratory judgment action under Chapter 2721 R. C. should be the exclusive remedy to challenge the constitutionality of a zoning ordinance as it affects a particular parcel of property.
I recognize that after much litigation as to the appropriate method of attacking constitutionality of a zoning-ordinance, it is now well established that a person may challenge the constitutionality of such ordinance as it affects his property either in a declaratory judgment action under Chapter 2721 R. C., or by an appeal from an administrative agency to the common pleas court under Chapter 2506 R. C.
Driscoll
v.
Austintown Associates
(1975), 42 Ohio St. 2d 263 ;
Mobil Oil Corp.
v.
Rocky River
(1974), 38 Ohio St. 2d 23 ;
State, ex rel. Sibarco Corp.,
v.
City of Berea
(1966), 7 Ohio St. 2d 85 . It is also noted that the Ohio Supreme Court has declared that the extraordinary writ of mandamus is not the appropriate vehicle in which to attack constitutionality of a zoning ordinance because the property owner has an adequate remedy at law.
State, ex rel. Sibarco Corp.,
v.
City of Berea, supra; State, ex rel. Fredrix,
v.
Village of Beachwood
(1960), 171 Ohio St. 343 ;
State, ex rel. Gund Co.,
v.
Village of Solon
(1960), 171 Ohio St. 318 .
A declaratory judgment action under Chapter 2721 R. C. is an independent action at law which was created by statute and which may be brought even though a party has an alternative remedy and the use of a declaratory judgment action is not limited to cases in which there is no other available remedy.
Schaefer
v.
First National Bank
(1938), 134 Ohio St. 511 ; Civil Rule 57, Ohio Rules of Civil Procedure.
A declaratory judgment action is not an extraordinary remedy such as mandamus nor is it an equitable remedy but it is a remedy in the ordinary course of law. See
Burt Realty Corp.
v.
Columbus
(1970), 21 Ohio St. 2d 265, 268 .
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However, a declaratory judgment action may not be brought if there is an exclusive statutory remedy which that person must use. In such case there is not an alternative remedy but an exclusive remedy and consequently a declaratory judgment action may not be maintained.
Dayton Transit Co.
v.
Dayton Power and Light
(1937), 57 Ohio App. 299 . Also, a declaratory judgment action may not be maintained if there is an available administrative remedy which is effectual to afford the relief sought.
Driscoll
v.
Austintown Associates, supra
at 267. But the affirmative defense of failure to exhaust administrative remedies must be timely asserted or it is considered waived.
Driscoll
v.
Austintown Associates, supra.
I will now discuss the administrative acts which are subject to appeal under Chapter 2506 R. C. While an administrative agency such as a board of zoning appeals or planning and zoning commission may have limited authority to grant relief such as a variance in the event of a hardship, they generally cannot change use, which is the function of a legislative body, nor can they declare a zoning ordinance unconstitutional. Further, a rejected request that a city council rezone property is legislative and not administrative action and therefore may not be appealed under Chapter 2506 R. C.
Tuber
v.
Perkins
(1966), 6 Ohio St. 2d 155 . An appeal under Chapter 2506 R. C. must be from an administrative agency such as a planning and zoning commission, board of zoning appeals, or by a city council acting in its quasi-judicial capacity and not in its legislative capacity.
As stated above a declaratory judgment action under Chapter 2721 R. C. is an independent action and may be brought even though a party has an alternative remedy, and the mere existence of Chapter 2506 R. C. does not preclude an action for declaratory judgment because Chapter 2506 R. C. is a non-exclusive alternative method of attacking the constitutionality of a zoning ordinance. See
Driscoll
v.
Austintown Associates, supra
at p. 269; also see, Krenzler, J., Dissenting Opinion,
State of Ohio, ex rel. Iris Sales Company,
v.
George V. Voinovich, etc. et al.
(Cuyahoga County Court of Appeals, 1975), Case No. 33494.
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The argument that a party must exhaust his administrative remedies before bringing a declaratory judgment action only applies if the administrative agency has authority to grant the relief sought and this defense is timely raised. Otherwise, it is waived.
Driscoll
v.
Austintown, supra
at pp. 273-276 .
The Supreme Court in
Driscoll
v.
Austintown
stated, “ * * # This court has recognized at least two situations in which exhaustion of administrative remedies is not required prior to filing a declaratory judgment action challenging the constitutionality of zoning. One, of course, is the situation in which there is not an administrative remedy available which could provide the relief sought.
Kaufman
v.
Newburgh Heights
(1971), 26 Ohio St. 2d 217 . The other is the situation in which the administrative remedy is unnecessarily onerous.
Burt Realty Corp.
v.
Columbus, supra.”
( 42 Ohio St. 2d 263, at 275 .)
The Supreme Court of Ohio has now stated in clear terms that the constitutionality of a zoning ordinance may be attacked in an appeal from a decision of an administrative agency under Chapter 2506 E. C. to the Common Pleas Court even though the administrative agency has limited authority to act and may not act directly on the issue of constitutionality.
Mobil Oil Corp.
v.
Rocky River, supra; State, ex rel. Sibarco Corp.,
v.
City of Berea, supra.
The Supreme Court did not explain in detail why the issue of constitutionality of a zoning ordinance can be raised in an appeal from an administrative agency under Chapter 2506 when that agency has no authority or jurisdiction to rule on that issue. It is noted that Justice Brown of the Ohio Supreme Court in his Concurring Opinion in
Mobil Oil Corp.
v.
Rocky River, supra
at p. 33 , stated, “that * # * [if a board of zoning appeals] was without power to grant the requested variance, then an appeal under Chapter 2506 E. C. was inappropriate.” He also stated on p. 34,
“* *
* Since the overall constitutionality of the zoning ordinance could not have been administratively determined, a declaration of the ordinance’s unconstitutionality in the appeal to the trial court would have been particularly inappropriate.”
But since the common pleas court does have general au
*334
thority to rule on the constitutionality of the zoning ordinance, apparently the Supreme Court believed that it made no difference whether the issue was raised in a declaratory judgment action or in an appeal under Chapter 2506 B. C.
Perhaps the Supreme Court reached this conclusion because of the inconsistent position taken by governmental agencies whenever a property owner brought either a declaratory judgment action under Chapter 2721 B. C. or attempted to take an appeal under Chapter 2506 B. C. and raise the issue of the constitutionality of the zoning ordinance. The governmental agency usually attacked and defended such actions by stating that whichever action was taken, it was not the appropriate remedy and that the other remedy whether it be by declaratory judgment action or by an appeal under Chapter 2506 B. C. was the appropriate remedy. Consequently property owners were forced to take an appeal under Chapter 2506 B. C. and simultaneously file a declaratory judgment action under Chapter 2721B. C., and move for consolidation of the cases.
Because the Supreme Court’s holding in
Mobil Ohio Corp.
v.
Rocky River, supra
and
State, ex rel. Sibarco,
v.
City of Berea, supra
expedites the judicial process and neither side is prejudiced by this holding it appears to be an appropriate ruling and naturally will be followed by the courts in Ohio.
Lastly, it is especially noted that whenever there is an attack on the constitutionality of a zoning ordinance, whether in a declaratory judgment action under Chapter 2721 R. C. or an appeal under Chapter 2506 B. C., the court must first determine whether the existing zoning ordinance in question is constitutional and if it does find that such ordinance is unconstitutional as it applies to the particular property in issue, it must then decide whether the use or uses sought by the property owner is reasonable.
Mobil Oil Corp.
v.
Rocky River, supra.