Opinion
February 18, 1971
Appeal from the Erie Special Term.
Present — Del Vecchio, J.P., Marsh, Gabrielli, Moule and Henry, JJ.
Judgment unanimously affirmed, without costs. Memorandum: The variance being sought was, in essence, an area variance, and upon the facts in this case the principle of self-created hardship is inapplicable ( Matter of Willits v. Schoepflin, 23 A.D.2d 868; Matter of Gapinski v. Zoning Bd. of Appeals of Town of Cheektowaga, 3 A.D.2d 976, app. dsmd. 3 N.Y.2d 920). However, since the requirements of paragraph 3 of article 5 of the Rules of Procedure of the Zoning Board of Appeals were not met or followed, the board lacked jurisdiction to reconsider its previous denial of the variance and the permit to alter the premises in question. In passing, we take further note of the absence of any evidence upon the new hearing which could not be presented or was not available at the time of the initial hearing (cf. Matter of McGarry v. Walsh, 213 App. Div. 289).