A Kansas gardener is suing for the right to sell honey and fruit from her Ottawa yard

OTTAWA, Kansas — Ellen Finnerty revels in working her backyard garden as much to learn the science as to harvest a juicy watermelon.

She researches compost techniques, knows the insects that visit her wild bergamot and is trying to dwarf several apple trees.

“Sometimes I’m even giddy about failures,” she said. “Like, ‘Oh, no! It failed! But why?’ And so it’s a big puzzle and my brain really loves that.”

Now the Ottawa resident wants to keep bees, too, and ultimately sell her honey, fruits and vegetables at a local farmer’s market.

But the city of Ottawa halted her aspirations last year, citing city code.

Finnerty holds out hope. With help from a small-government advocacy group, the gardener sued in May, arguing those rules violate the Kansas Constitution.

Some cities across the country are changing their codes to allow residents to grow more food or add bees and chickens to their yards.

Lawrence, for example, changed its codes in 2016 to loosen rules for residential crops and allow beekeeping and sales of honey and other homegrown foods. In 2019, the state of Indiana struck down all municipal beekeeping bans.

But in many places, homeowners still face confusing or difficult rules to follow that effectively limit their ability to put yards to use producing food.

This week, Ottawa’s lawyers asked a judge to throw out her case.

They argue she should push for city code changes or a conditional exemption outside of court — and suggested city officials could prove amenable to her ideas.

“In fact,” city lawyers wrote in a court filing, Ottawa “is currently in the process of amending the zoning regulations to permit backyard chicken coops following receipt of requests from other citizens.”

The city hasn’t answered repeated media inquiries to understand the codes that Finnerty and her lawyer say ban the sale of honey, zucchini, basil and anything else she produces in her yard.

‘Arbitrary and irrational’

Lush foliage fills the backyard of Finnerty’s 4,000-square-foot lot, where she tends grapevines, corn and hazelnut bushes.

Sporting a Grateful Dead T-shirt and the steel-toed boots that she wears to her job working 10-hour shifts as a machine operator in a warehouse, she offered a tour of the garden that reflects her lifelong fascination.

As a child, Finnerty helped her mother plant marigolds.

Later in life, she’d get up early to watch “The Victory Garden” on public TV. She lugged field guides and gardening books with her religiously as her military family moved from one duty station to another.

Now she wants to turn her passion into extra income for her and her two daughters.

“And with my past in the military community,” she said, “If you want to do something, you ask permission.”

So Finnerty, who has taken beekeeping classes at Johnson County Community College, contacted the city to fill out any papers needed for her yard-to-table vision.

“Let me tell you, when you work — clocking in at 5 a.m. — and then you’re willing to take a night class,” she said, “there’s a lot of dedication and expense.”

A city planner told her that Ottawa’s codes didn’t allow commercial beekeeping at home.

“Animal keeping of any kind is prohibited as a home occupation,” the email reads. “I know this is a hot topic in the region and cities are slow to adopt code to address bee keeping/chickens/etc in residential districts.”

Finnerty hadn’t counted on the Ottawa city code dashing her business plan. She had purchased a house without a homeowners’ association precisely to avoid any nitpicking about her gardening.

The Kansas Justice Institute took her case to court.

It’s the legal subsidiary of the better-known Kansas Policy Institute, an influential, fiscally conservative think tank that favors small government and lobbies state lawmakers for tax cuts and corporation-friendly tax policy.

Sam MacRoberts, litigation director at the Kansas Justice Institute, said Ottawa has violated Finnerty’s rights to life, liberty and the pursuit of happiness.

“The city can’t just prohibit things that are safe and reasonable, like beekeeping and gardening for money,” he said. “Ellen has a dream business. And her dream business is being prohibited by an arbitrary and irrational city code.”

The Kansas Justice Institute has successfully challenged other laws and regulations that limit small, family-run businesses, including for eyebrow threaders and farmers who sell raw milk.

“Can cities regulate out of existence home-based businesses for no good reason?” MacRoberts said. “From our perspective, the Kansas Constitution says that cities cannot.”

As MacRoberts reads it, Ottawa’s rulebook bars backyard gardeners from selling any of their outdoor bounty, not just honey.

One line prohibits home-based, commercial “animal care of any type.” Another says home-based businesses must stay “entirely within a dwelling unit.”

Ottawa’s court filing argues some home businesses bypass that rule with permits or conditional exemptions, though the city hasn’t clarified any routes to permission for Finnerty.

She remains concerned that Ottawa’s rules put her at risk of fines and jail time if she sells homegrown juneberry jam or jars of honey.

Urban beekeeping

Would-be beekeepers sometimes run into city codes that prevent them from setting up hives in residential neighborhoods.

But as public interest in pollinators increases — and policymakers’ understanding of safe beekeeping improves — plenty of municipalities have relaxed their rules.

The Ottawa situation appears to differ slightly from other municipal beekeeping hurdles.

Finnerty’s lawyer said the city already allows backyard beekeeping, because it doesn’t explicitly ban the practice in writing. It only bans this kind of animal-related work if the homeowner makes it into a business.

Finnerty’s problem isn’t that she wants bees. It’s that she plans to sell the honey.

Finnerty said warehouse workers like her often have “a side hustle.”

“Honey is very valuable,” she said. “Locally produced honey, when you’ve had it, you want more. You’re not going to go to Walmart after that.”