concurs in part and dissents in part, and votes to dismiss the appeal from the judgment dated February 26,1982 and to affirm the resettled judgment dated November 17, 1982, in accordance with the following memorandum: As the majority concedes, a zoning board of appeals is not constrained by the rules of evidence and may conduct informal hearings (Matter of Von Kohorn v Morrell, 9 NY2d 27, 32; Matter of Kenyon v Quinones, 43 AD2d 125, 128-129). Furthermore, it is not limited to a consideration of the testimony and exhibits presented to it, but may conduct its own investigation (Matter of Holy Spirit Assn. v Rosenfeld, 91 AD2d 190, 201; Pearson v Shoemaker, 233 NYS2d 674, 675). However, when a board acts of its own knowledge, it must set forth in its return the facts known to its members but not otherwise disclosed (People ex rel. Fordham Manor Ref. Church v Walsh, 244 NY 280, 287; Matter of Community Synagogue v Bates, 1 NY2d 445, 454; Matter of Weidenhamer v Bundschuh, 37 AD2d 720). Such a recitation in the return is not only necessary so that there may be adequate judicial review, but it also enables an interested party to ask for a reopening of the hearing for the purpose of refuting matters not presented at the hearing (Matter of Kronovet v Baldwin, 51 Misc 2d 27, 29 [Meyer, J.]). Uln the instant matter, there is no question that respondent disclosed the existence of the letter in its determination. There is also no question that petitioner did not request a new hearing. Nonetheless, petitioner maintains that his due process rights were violated by the board’s consideration of the letter, since it was not presented at the hearing where he *592could rebut it. I disagree. In my view there is no significant distinction to be made between a zoning board of appeals acting upon its own knowledge or investigation, where such is properly disclosed in its return, and, as here, a board’s acting upon an ex parte receipt of information with a similar disclosure in the return. It makes little sense in either logic or law to say that the former practice is allowable but that the latter transgresses a petitioner’s due process rights. I, therefore, disagree with the cases relied on by the majority to the effect that the consideration of evidence received after the close of a hearing by a zoning board of appeals is a per se violation of the due process rights of the opponent of such evidence (see, e.g., Matter of Wunder v Macomber, 34 Misc 2d 281, 289-290; Fulton v Board of Appeals, 152 NYS2d 974). Thus, in my view, the notarized letter at bar could properly be relied on by the board in reaching its decision (see Matter of De Blois v Wallace, 88 AD2d 1073). 11 Here, the board properly apprised petitioner, through its return, of its consideration of the letter. Although he did not do so, petitioner could have requested a rehearing (Town Law, § 267, subd 6; Matter of Hoerner v Tormey, 24 AD2d 597). He does not claim that he was ignorant of that right, but only that there is no reason to believe that his request for a rehearing would have been granted. Under these circumstances, petitioner effectively waived his proper remedy and should not now be heard to complain that he was denied due process (see Matter of Miller v Coughlin, 59 NY2d 490, 494). I do not, of course, express any opinion as to what the outcome might have been had petitioner been unaware of the possibility of requesting a rehearing or had his request for a rehearing been denied. I only maintain that a claimant’s due process rights are not offended by the reliance of a zoning board of appeals upon material received after a hearing, where that reliance is noted in the board’s return and where the claimant thereafter knowingly refrains from requesting a rehearing. K Finally, I am not persuaded by the majority’s attempt to distinguish Matter of De Blois v Wallace (supra) on the ground that the testimony in question there was that of a municipal official with no vested interest in the decision, and that his testimony was received at a public hearing at which the petitioners “would at least have had [a theoretical] opportunity to comment”. The question of “interest” relates solely to credibility and is properly resolved by the board of appeals. Moreover, while the hearing in De Blois may technically have been open to the public, the Appellate Division, Third Department, in that case specifically criticized the wisdom but not the legality of the board’s decision to accept such testimony on the ground that the procedure employed authorized the reception of such evidence “without affording petitioners an opportunity to appraise or rebut it’ (Matter of De Blois v Wallace, supra, p 1074; emphasis supplied).