Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Lewis, J.A.D.
Plaintiff, a resident of the Township of Union, instituted a declaratory judgment proceeding to invalidate a section of the local zoning ordinance, to enjoin the enforcement thereof and to direct the municipal building inspector to issue a permit for the maintenance of a pigeon shelter on his property. The challenged portion of the ordinance reads:
"Accessory uses shall not be deemed to include any building or structure or any part thereof used for the housing or sheltering of birds, poultry or animals unless such buildings or structures constitute part of an existing agricultural establishment."
The trial court entered judgment declaring the quoted section of the ordinance "invalid, arbitrary, capricious and unreasonable, insofar as the same prohibits the plaintiff from maintaining a shelter for racing pigeons" and directed that the requested permit be issued. The municipal defendants appeal.
Plaintiff's dwelling is situate on a parcel of land 65' x 285' located in a Residence "A" District. His house was constructed in 1964, at which time he built to the rear thereof a pigeon coop 30 feet in length where he keeps, as a hobby, approximately 20 pairs of homing or racing pigeons. Before
the completion of the pigeon coop he was advised by the building inspector that a variance from the terms of the zoning ordinance would be necessary. In August 1964, and again in May 1966, he sought a variance from the zoning board of adjustment and, on each occasion, his application was denied.
The building inspector testified that plaintiff's premises are located in one of the "better" residential sections of the community where the density of population is "quite high" and that close to 500 homes have been erected within the specific area during the past ten years.
The record reveals conflicting testimony of the neighbors as to the existence and extent of pigeon droppings on their properties and the prevalence of annoyances such as noise, odor or vermin attributable to plaintiff's pigeons or wild pigeons they allegedly attract to the vicinity.
There was wide disparity in the evidence adduced from the expert witnesses as to the health hazards incident to raising trained pigeons. Dr. Leon Whitney, a retired veterinarian "presently engaged in research mostly with pigeons and dogs," testifying for plaintiff stated that he had inspected the pigeon loft on the morning of the trial. The doctor found no overcrowding of the birds, no odors outside the shelter, no audible noise beyond 25 feet from the structure and no "signs of bad health of the pigeons or the area." He characterized the shelter as being cared for "excellently." Throughout his testimony, however, it was developed that pigeon manure is a source of human diseases; common pigeons are attracted by racing pigeons; in the event pigeon lofts are not properly cleaned, parasitic diseases may develop among the pigeon flock, incidents of vermin attraction would be increased, and there would be a detrimental health factor.
Dr. William Carter, a veterinarian employed by the New Jersey State Department of Health, gave evidence on behalf of the township that pigeons are transmitters of many human diseases and that the keeping of racing pigeons could "very probably * * * affect the public health."
The trial judge, in ruling in plaintiff's favor, ...