131 Private

"131 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. I find it significant that community planners are dealing with this country’s continued population growth and buildin g 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, 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 public nuisance, we are presented with a private nuisance case which I believe is distinguishable in this regard. 14 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 (1968). I would concur with these observations of the trial judge: “While temptation lingers for the court to 14 I am amused at the majority’s contention that what constitutes a nuisance today would have been accepted without question in earlier times. 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 be 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."