(dissenting). The majority has adopted the Restatement’s reasonable use doctrine to grant an owner of a solar heated home a cause of action against his neighbor who, in acting entirely within the applicable ordinances and statutes, seeks to design and build his home in such a location that it may, at various times during the day, shade the plaintiff’s solar collector, thereby impeding the efficiency of his heating system1 during several months of the year. Because I believe the facts of this case clearly reveal that a cause of action for private nuisance will not lie, I dissent.
The majority arrives at its conclusion that the common law private nuisance doctrine is applicable by analogizing this situation with the spite fence cases which protect a landowner from malicious obstruction of access to light. Supra, at 233-235. See Piccirilli v. Groccia, 114 R.I. 36, 39, 327 A.2d 834, 837, (1974) (plaintiff must prove allegedly objectionable fence was erected solely for the avowed purpose of damaging the abutting neighbor and not for the advantage of the person who constructed the fence) ; Schorck v. Epperson, 74 Wyo. 286, 287-88, 287 P.2d 467 (1955) (doctrine of private nuisance founded *244on maxim that no one should have a legal right to make a malicious use of his property for no benefit to himself but merely to injure another). Accord Daniel v. Birmingham Dental Mfg. Co., 207 Ala. 659, 661, 93 S. 652 (1922); Green v. Schick, 194 Okla. 491, 492, 153 P.2d 821 (1944). See also Comment, Obstruction of Sunlight as a Private Nuisance, 65 Calif. L. Rev. 94, 99-102 (1977) (“the ironclad rule has been that the obstruction of a neighbor’s light and air is not a nuisance if it serves any useful purpose”). Id. at 101 (emphasis in original). Courts have likewise refused to limit interference with television reception and other broadcast signals. The People ex rel. Hoogasian v. Sears, Roebuck and Co., 52 Ill. 2d 301, 305, 287 N.E.2d 677 (1972), cert. denied, 409 U.S. 1001. Clearly, the spite fence cases, as their name implies, require malice which is not claimed in this case.
The majority then concludes that this court’s past reluctance to extend protection to a landowner’s access to sunlight beyond the spite fence cases is based on obsolete policies which have lost their vigor over the course of the years. Supra, at 237. The three obsolete policies cited by the majority are: (1) Right of landowners to use their property as they desire as long as no physical damage is done to a neighbor; (2) In the past, sunlight was valued only for aesthetic value, not a source of energy; and (3) Society has a significant interest in not impeding land development. Supra, at 235. See Comment, Obstruction of Sunlight as a Private Nuisance, supra at 105-12. The majority has failed to convince me that these policies are obsolete.
It is a fundamental principle of law that a “landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.” United States v. Causby, 328 U.S. 256, 264 (1946) ; In Re Honolulu Rapid Transit Co., 54 Hawaii 402, 408, 507 P.2d 755 (1973) ; Granberry v. Jones, et al., 188 Tenn. 51, 54-55, 216 S.W.2d 721 (1949). As stated in *245the frequently cited and followed case of Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357 (Fla. Dist. Ct. App. 1959), cert. denied, 117 So. 2d 842 (Fla. 1960) :
“There being, then, no legal right to the free flow of light and air from the adjoining land, it is universally heid that where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action, either for damages or for an injunction under the maxim sic utere tuo ut alienum non laedas, even though it causes injury to another by cutting off the light and air and interfering with the view that would otherwise be available over adjoining land in its natural state, regardless of the fact that the structure may have been erected partly for spite.” Id. at 359 (emphasis in original).
See Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 3d 116, 127, 99 Cal. Rptr. 350, 357 (1971). I firmly believe that a landowner’s right to use his property within the limits of ordinances, statutes, and restrictions of record where such use is necessary to serve his legitimate needs is a fundamental precept of a free society which this court should strive to uphold.
As one commentator has suggested:
“It is fashionable to dismiss such values as deriving from a bygone era in which people valued development as a ‘goal in itself,’ but current market prices for real estate, and more particularly the premiums paid for land whose zoning permits intensive use, suggest that people still place very high values on such rights.”
Williams, Solar Access and Property Rights: A Maverick Analysis, 11 Conn. L. Rev. 430, 443 (1979) (footnote omitted). Cf. Goble, Solar Access and Property Rights: Reply to a “Maverick” Analysis, 12 Conn. L. Rev. 270 (1980).
The majority cites two zoning cases, Village of Euclid v. Ambler Realty Company, 272 U.S. 365 (1926), and Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 *246(1972), to support the conclusion that society has increasingly regulated private land use in the name of public welfare. Supra, at 236. The cases involving the use of police power and eminent domain are clearly distinguishable from the present situation as they relate to interference with a private right solely for the public health, safety, morals, or welfare. In the instant case, we are dealing with an action which seeks to restrict the defendant’s private right to use his property, notwithstanding a complete lack of notice of restriction to the defendant and the defendant’s compliance with applicable ordinances and statutes. The plaintiff who knew of the potential problem before the defendant acquired the land seeks to impose such use restriction to accommodate his personal, private benefit — a benefit which could have been accommodated by the plaintiff locating his home in a different place on his property or by acquiring the land in question when it was for sale prior to its acquisition by the defendant.
1 know of no cases repudiating policies favoring the right of a landowner to use his property as he lawfully desires or which declare such policies are “no longer fully accepted or applicable” in this context. Supra, at 236.2 The right of a property owner to lawful enjoyment of his property should be vigorously protected, particularly in *247those cases where the adjacent property owner could have insulated himself from the alleged problem by acquiring the land as a defense to the potential problem or by provident use of his own property.
The majority concludes that sunlight has not heretofore been accorded the status of a source of energy, and consequently it has taken on a new significance in recent years. Solar energy for home heating is at this time sparingly used and of questionable economic value because solar collectors are not mass produced, and consequently, they are very costly. Their limited efficiency may explain the lack of production.
Regarding the third policy the majority apparently believes is obsolete (that society has a significant interest in not restricting land development), it cites State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974). I concede the law may be tending to recognize the value of aesthetics over increased volume development and that an individual may not use his land in such a way as to harm the ‘public. The instant case, however, deals with a private benefit. I note that this court in Deetz stated: “The reasonable use rule retains ... a policy of favoring land improvement and development.” Id. at 20. See also id. at 15. Accord Moritz v. Buglewicz, 187 Neb. 819, 194 N.W.2d 215 (1972). I find it significant that community planners are dealing with this country’s continued population growth and building revitalization where “[t]he number of households is expected to reach almost 100 million by the end of the decade; that would be 34 percent higher than the number in 1970.” F. Strom, 1981 Zoning and, Planning Law Handbook, sec. 22.02 [8], 396 (1981). It is clear that community planners are acutely aware of the present housing shortages, particularly among those two groups with limited financial resources, the young and the elderly. Id. While the majority’s policy arguments may be directed to a cause of action for *248public nuisance, we are presented with a private nuisance case which I believe is distinguishable in this regard.3
I would submit that any policy decisions in this area are best left for the legislature. “What is ‘desirable’ or ‘advisable’ or ‘ought to be’ is a question of policy, not a question of fact. What is ‘necessary’ or what is ‘in the best interest’ is not a fact and its determination by the judiciary is an exercise of legislative power when each involves political considerations.” In re City of Beloit, 37 Wis. 2d 637, 644, 155 N.W.2d 633 (1968). See generally Holifield v. Setco Industries, Inc., 42 Wis. 2d 750, 758, 168 N.W.2d 177 (1969) ; Comment, Solar Rights: Guaranteeing a Place in the Sun, 57 Or. L. Rev. 94, 126-27 (1977) (litigation is a slow, costly, and uncertain method of reform). I would concur with these observations of the trial judge: “While temptation lingers for the court to declare by judicial fiat what is right and what should be done, under the facts in this case, such action under our form of constitutional government where the three branches each have their defined jurisdiction and power, would be an intrusion of judicial egoism over legislative passivity.”
*249The legislature has recently acted in this area. Chapter 354, Laws of 1981 (effective May 7, 1982), was enacted to provide the underlying legislation enabling local governments to enact ordinances establishing procedures for guaranteeing access to sunlight. This court’s intrusion into an area where legislative action is being taken is unwarranted, and it may undermine a legislative scheme for orderly development not yet fully operational.
Chapter 354, Laws of 1981, sec. 66.032, provides specific conditions for solar access permits. In part that section provides for impermissible interference with solar collectors within specific limitations:
“66.032 Solar access permits. (1) . . .
“(f) ‘Impermissible interference’ means the blockage of solar energy from a collector surface or proposed collector surface for which a permit has been granted under this section during a collector use period if such blockage is by any structure or vegetation on property, an owner of which was notified under sub. (3)(b). ‘Impermissible interference’ does not include:
“1. Blockage by a narrow protrusion, including but not limited to a pole or wire, which does not substantially interfere with absorption of solar energy by a solar collector.
“2. Blockage by any structure constructed, under construction or for which a building permit has been applied for before the date the last notice is mailed or delivered under sub. (S)(b).
“3. Blockage by any vegetation planted before the date the last notice is mailed or delivered under sub. (3) (b) unless a municipality by ordinance under sub. (2) defines impermissible interference to include such vegetation.” (Emphasis added.)
Sec. 66.032(3) (b) provides for notice:
“ (3) Permit applications.
“(b) An agency shall determine if an application is satisfactorily completed and shall notify the applicant of its determination. If an applicant receives notice that *250an application has been satisfactorily completed, the applicant shall deliver by certified mail or by hand a notice to the owner of any property which the applicant proposes to be restricted by the permit under sub. (7). The applicant shall submit to the agency a copy of a signed receipt for every notice delivered under this paragraph. The agency shall supply the notice form. The information on the form may include, without limitation because of enumeration:
“1. The name and address of the applicant, and the address of the land upon which the solar collector is or will be located.
“2. That an application has been filed by the applicant.
“3. That the permit, if granted, may affect the rights of the notified owner to develop his or her property and to plant vegetation.
“4. The telephone number, address and office hours of the agency.
“5. That any person may request a hearing under sub. (4) within 30 days after receipt of the notice, and the address and procedure for filing the request.” (Emphasis added.)
This legislative scheme would deal with the type of problem presented in the present case and precludes the need for judicial activism in this area.
I examine with interest the definition of nuisance as set out in the Restatement (Second) of Torts and adopted in the majority opinion: “A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement (Second) of Torts sec. 821D (1977) (emphasis added). The majority believes that the defendant’s obstruction of the plaintiff’s access to sunlight falls within the broad definition of “use and enjoyment of land.” Supra, at 230-232. I do not believe the defendant’s “obstruction” of the plaintiff’s access to sunlight falls within the definition of “invasion,” as it applies to the private use and enjoyment of land. Invasion is typically synonymous with *251“entry,” “attack,” “penetration,” “hostile entrance,” “the incoming' or spread of something unusually hurtful.” Webster’s Third International Dictionary, 1188 (1966). Most of the nuisance cases arising under this definition involve noxious odors, smoke, blasting, flooding, or excessive light invading the plaintiff’s right to the use of enjoyment of his property. See Prosser, Law of Torts, sec. 89, 591-92 (4th ed. 1971) .4 See Williams, Solar Access and Property Rights: A Maverick Analysis, 11 Conn. L. Rev. at 441 (there are significant practical differences between dust and noise, on the one hand, and solar access blockage on the other). Clearly, an owner who merely builds his home in compliance with all building code and municipal regulations is not “invading” another’s right to the use and enjoyment of his property. To say so is to acknowledge that all construction may be an “invasion” because all construction has some restrictive impact on adjacent land. A “view,” for example, is modified by any construction simply because it is there.
In order for a nuisance to be actionable in the instant case, the defendant’s conduct must be “intentional and unreasonable.”5 It is impossible for me to accept the majority’s conclusion that Mr. Maretti, in lawfully seeking to construct his home, may be intentionally and unreasonably interfering with the plaintiff’s access to sunlight. In addressing the “unreasonableness” component of the actor’s conduct, it is important to note that *252“ [t] here is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.” Restatement (Second) of Torts sec. 821F (1979). The comments to the Restatement further reveal that “[if] normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncracies of the particular plaintiff may make it unendurable to him.” Id. Comment d.6 See Bie v. Ingersoll, 27 Wis. 2d 490, 493, 135 N.W.2d 250(1965) ; Belmar Drive-In Theatre Co. v. The Illinois State Toll Highway Commission et al., 34 Ill. 2d 544, 547-49, 216 N.E.2d 788 (1966).
I conclude that plaintiff’s solar heating system is an unusually sensitive use. In other words, the defendant’s proposed construction of his home, under ordinary circumstances, would not interfere with the use and enjoyment of the usual person’s property. See W. Prosser, supra, sec. 87 at 578-79. “The plaintiff cannot, by devoting his own,land to an unusually sensitive use, such *253as a drive-in motion picture theater easily affected by light, make a nuisance out of conduct of the adjoining defendant which would otherwise be harmless.” Id. at 579 (footnote omitted).7
Looking solely at the defendant’s conduct, the circuit court concluded that the defendant’s construction of a house did not create a cause of action for nuisance because the defendant’s proposed home was in conformity with zoning regulations, building codes, deed restrictions, as well as the fact that the defendant’s use of the land to build his home was reasonable. The majority, however, cites Bie v. Ingersoll, supra, for the proposition that compliance with the law is not the controlling factor in evaluating a nuisance claim. I note that Bie involved the operation of an asphalt plant from which dust and odors permeated the plaintiff’s adjoining residence. The defendants asserted that, because the property occupied by the asphalt plant was zoned for industrial use, the plant could not constitute a nuisance. This court concluded that the zoning classification was not the controlling factor. “It is rather ‘the peculiar nature and the location of the business, not the fact that it is a business, that constitutes the private nuisance.’ ” 27 Wis. 2d at 495. The Bie case is clearly distinguishable from the case at bar. Here, *254the defendant seeks to build his home in compliance with all existing laws, and it will have no “peculiar nature.” As I read the Bie case, the negative implication from its facts is that a business which does not emit dust or odors (i.e., which has no peculiar nature) and which is in conformity with zoning regulations is not a private nuisance. I would hold under the facts of the instant case that the defendant’s conduct is not unreasonable per se, and consequently, a nuisance cause of action cannot stand.
I further believe that the majority’s conclusion that a cause of action exists in this case thwarts the very foundation of property law. Property law encompasses a system of filing and notice in a place for public records to provide prospective purchasers with any limitations on their use of the property. Such a notice is not alleged by the plaintiff. Only as a result of the majority’s decision did Mr. Maretti discover that a legitimate action exists which would require him to defend the design and location of his home against a nuisance suit, notwithstanding the fact that he located and began to build his house within the applicable building, municipal, and deed restrictions.
Obviously, the legislature was cognizant of the importance of notice. In Chapter 354, Laws of 1981, secs. 66.032(5) and (6) deal with notice to an adjoining landowner :
“(5) Permit grant, (a) The agency shall grant a permit if the agency determines that:
“1. The granting of a permit will not unreasonably interfere with the orderly land use and development plans of the municipality;
“2. No person has demonstrated that she or he has present plans to build a structure that would create an impermissible interference by showing that she or he has applied for a building permit prior to receipt of a notice under sub. (3) (b), has expended at least $500 on planning or designing such a structure or by submitting any other credible evidence that she or he has made substan*255tial progress toward planning or constructing a structure that would create an impermissible interference; and
“3. The benefits to the applicant and the public will exceed any burdens.
“ (b) An agency may grant a permit subject to any condition or exemption the agency deems necessary to minimize the possibility that the future development of nearby property will create an impermissible interference or to minimize any other burden on any person affected by granting the permit. Such conditions or exemptions may include but are not limited to restrictions on the location of the collector and requirements for the compensation of persons affected by the granting of the permit.
“(6) Record op permit. If an agency grants a permit:
“(a) The agency shall specify the property restricted by the permit under sub. (7) and shall prepare notice of the granting of the permit. The notice shall include the identification required under s. 706.05(2) (c) for the owner and the property upon which the solar collector is or will be located and for any owner and property restricted by the permit under sub. (7), and shall indicate that the property may not be developed and vegetation may not be planted on the property so as to create an impermissible interference with the solar collector which is the subject of the permit unless the permit affecting the property is terminated under sub. (9) or unless an agreement affecting the property is filed under sub. (10).
“(b) The applicant shall record with the register of deeds of the county in which the property is located the notice under par. (a) for each property specified under par. (a) and for the property upon which the solar collector is or will be located.”
In recognizing this common law cause of action, this court’s decision is in direct conflict with the 1981 legislative provisions for the granting of solar access permits. In a municipality which enacts the ordinance in conformity with the statute, neighbors know their respective rights. Under the majority decision, in a municipality which does not enact the ordinance, a common law cause of action for nuisance exists without any defined rights.
*256I believe the facts of the instant controversy present the classic case of the owner of a solar collector who fails to take any action to protect his investment. There is nothing in the record to indicate that Mr. Prah disclosed his situation to Mr. Maretti prior to Maretti’s purchase of the lot or attempted to secure protection for his solar collector prior to Maretti’s submission of his building plans to the architectural committee. Such inaction should be considered a significant factor in determining whether a cause of action exists.
The majority’s failure to recognize the need for notice may perpetuate a vicious cycle. Maretti may feel compelled to sell his lot because of Prah’s solar collector’s interference with his plans to build his family home. If so, Maretti will not be obliged to inform prospective purchasers of the problem. Certainly, such information will reduce the value of his land. If the presence of collectors is sufficient notice, it cannot be said that the seller of the lot has a duty to disclose information peculiarly within his knowledge. I do not believe that an adjacent lot owner should be obliged to experience the substantial economic loss resulting from the lot being rendered un-buildable by the contour of the land as it relates to the location and design of the adjoining home using solar collectors.8
I am troubled by the majority’s apparent retrospective application of its decision. I note that the court in Deetz saw the wisdom and fairness in rendering a prospective decision. 66 Wis. 2d at 24. Surely, a decision such as this *257should be accorded prospective status. Creating the cause of action after the fact results in such unfair surprise and hardship to property owners such as Maretti.
Because I do not believe that the facts of the present case give rise to a cause of action for private nuisance, I dissent.
Plaintiff testified that he has a backup electrical system as required by law in this state. Thus, if the solar system fails or loses efficiency, he may resort to the electrical system.
Perhaps one reason courts have been hesitant to recognize a cause of action for solar blockage is that such a suit would normally only occur between two abutting landowners, and it is hoped that neighbors will compromise and reach agreement between themselves. This has, undoubtedly, been done in a large percentage of cases. To now recognize a cause of action for solar blockage may thwart a policy of compromise between neighbors. See Williams, Solar Access and Property Bights: A Maverick Analysis, 11 Conn. L. Rev. 430, 441-42 (1979). See also S. Kraemer, Solar Law, 138 (1978) (“[a] deterring factor to the use of private nuisance to assure access to direct sunlight is the resultant litigation between neighbors”).
I am amused at the majority’s contention that what constitutes a nuisance today would have been accepted without question in earlier times. Supra 237. This calls to mind the fact that, in early days of travel by horses, the first automobiles were considered nuisances. Later, when automobile travel became developed, the horse became the nuisance. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. Chi. L. Rev. 681, 731 (1973). This makes me wonder if we are examining the proper nuisance in the case before us. In other words, could it he said that the solar energy user is creating the nuisance when others must conform their homes to accommodate his use? I note that solar panel glare may temporarily blind automobile drivers, reflect into adjacent buildings causing excessive heat, and otherwise irritate neighbors. Certainly in these instances the solar heating system constitutes the nuisance.
Dean Prosser also includes disturbances with peace of mind occasioned by “bawdy houses,” stored explosives, or fire hazards within the purview of the definition of nuisance. I submit these indicia of nuisance relate to a defendant’s unreasonable or unlawful use of his property.
Unintentional conduct may also be actionable if the plaintiff asserts negligence or recklessness or if an abnormally dangerous condition or activity exists. Restatement (Second) of 'Torts sec. 822(b) (1979). The plaintiff’s complaint does not specify whether the defendant’s conduct was intentional, negligent, or reckless.
Consider, for example, the following illustrations provided in the Restatement:
“2. A operates a race track, which is illuminated at night by flood lights directed downward. B operates next door an open-air motion picture theater, screened off from the highway. The reflection of A’s lights, equivalent to the light of the full moon, would be harmless and unobjectionable to anyone making a normal use of adj'oining land, but so seriously interferes with the operation of B’s motion pictures that B loses customers. B cannot recover from A for a private nuisance.
“3. A operates a slaughterhouse, which gives off highly offensive orders, sufficient to make life unendurable for any normal person living near it. B, who lives next door is without any sense of smell, and is not personally troubled by the odors. B can recover from A for a private nuisance.”
Restatement (Second) of Torts sec. 821F (1979). In my opinion, the instant case clearly fits under the first example.
Amicus curiae United States of America in its brief to this court advances the proposition that even a sensitive use is entitled to protection from unreasonable interference. Amicus analogizes to several “mink cases” which involve negligence actions. See Bell v. Gray-Robinson Construction Company, 265 Wis. 652, 62 N.W.2d 390 (1954); Maitland v. Twin City Aviation Corp., 254 Wis. 541, 37 N.W.2d 74 (1949). A thorough reading of these decisions reveals that they are clearly distinguishable from the case at bar. No cases have been cited in this jurisdiction which limit this.
I note that the federal government supports the plaintiff’s position in the instant case. If solar energy is in the national interest, federal legislation should be enacted.
Mr. Prah could have avoided this litigation by building his own home in the center of his lot instead of only ten feet from the Maretti lot line and/or by purchasing the adjoining lot for his own protection. Mr. Maretti has already moved the proposed location of his home over an additional ten feet to accommodate Mr. Prah’s solar collector, and he testified that moving the home any further would interfere with his view of the lake on which the property faces.