Inside a Dispute Over Handling Cooking Oil Waste in Wisconsin

Following a fire in 2014, Sanimax filed a request with the village zoning administrator to reconstruct and expand its operations.

Useless, unwanted things. That’s how most people see “waste.” This widespread attitude overlooks throw-away items or substances that may, in fact, be a resource. Illustrating this point is court decision from a place that calls itself “America’s Dairyland.”

Sanimax operates a recycling plant in the village of DeForest, Wis., a community near Madison, the state capitol. Without charge, the company recovers the grease from traps in restaurants' drains leading to the municipal sewer system. Restaurants also store used cooking oil and sell it to Sanimax. Although these establishments have no further use for the grease and oil, Sanimax turns a profit by processing these substances into an ingredient in animal feed.

Following a fire in 2014, Sanimax filed a request with the village zoning administrator to reconstruct and expand its operations. In response, the zoning administrator notified the company that “waste material processing” was expressly prohibited in the M-2 zoned area where it is located, and thus approval for the proposed work would be denied.

Sanimax appealed the zoning administrator’s decision to the board of zoning appeals. Following a public hearing, the board upheld the application of the “waste material processing" and the corresponding denial of the approvals the company was seeking. Sanimax filed for judicial review in the Dane County Circuit Court where, after a hearing, the trial judge overturned the zoning decision and directed the board to enter an order finding that the company's grease and oil processing is a permitted use in the M-2 district.

After the village appealed the ruling, a three-judge panel of the state court of appeals undertook to determine whether the zoning board correctly interpreted and applied the phrase "waste material processing" to Sanimax's grease and cooking oil processing operation.

Sanimax argued that the plain meaning of "waste material processing" does not cover its processing of grease and used cooking oil. To the contrary, the village not only argued that the ordinance language clearly covers the activity, it claimed that the zoning board's interpretation must be presumed correct so long as such interpretation is reasonable.

“Thus, we understand the Village to have implicitly conceded the following: If we conclude . . . that the Board's interpretation is unreasonable -- that ‘[w]aste material ... processing ... as a principal use’ unambiguously does not apply to Sanimax's activity here -- then there is no presumption or deference in favor of the Board's interpretation,” the appellate panel stated.

From there, the appellate panel addressed whether it was reasonable to construe the words "waste material processing” as covering Sanimax's operations. The answer would depend on whether the grease and oil were deemed "waste material.” Unfortunately, the village ordinance does not define "waste." Thus, under Wisconsin law, courts will apply the "common and generally understood meaning of a word" by resorting to dictionary definitions.

The village argued, and the appeals court agreed, that the relevant standard definitions of “waste” are "unused, " "unusable, " and "unwanted." But the panel rejected the village’s contention that the grease and cooking oil fit these definitions because the restaurants deem these substances unusable and unwanted. “[T]he dictionary definitions the Village points to do not suggest this sort of limitation,” the opinion stated. “[T]he definitions do not suggest that whether something is "unusable" or "unwanted" is determined by looking from a particular party's perspective.”

“Applying that common-sense view, we think it obvious that, if a reasonable person was asked whether used cooking oil that is profitably processed into an ingredient in animal feed by a company like Sanimax is ‘unused,’ ‘unusable,’ and ‘unwanted,’ the obvious answer would be no,” the opinion continued.

Sanimax did not simply argue that the grease and cooking oil are not "waste" because they have future value after processing. Instead, its brief gave examples of operations where discards have value as raw materials that can be profitably processed into salable products:

[U]ntil processed, wood pulp used to manufacture paper is of no useful purpose and  could be considered waste. Prior to brewing, the malts and yeasts employed in  making beer are not readily consumable and could be considered waste. If a mechanic  in DeForest buys broken down cars (unused and unproductive property) and fixes  them up for sale, is the mechanic engaged in waste processing?

For their part, the restaurants do not consider the used cooking oil "unusable" or "unwanted.” They retain their used cooking oil because it can be sold to Sanimax or a similar recycling operation. Indeed, the zoning board itself found that, "[b]ut for the recycling value of such material to Sanimax ... the used grease and oil is material that would be discarded.”

Affirming the lower court’s judgment in favor of Sanimax, the appellate panel, noting the commonly understood and approved dictionary meaning of terms, ruled that the restaurant grease and oil do not fit the definition of "waste" that the village relies on.

Sanimax USA LLC v. Village of DeForest Board of Zoning Appeals, 2016AP535, Wis. Ct. App., Jan. 12, 2017

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