We may nonetheless review the validity of the Town Board's legislative determination not to approve the 2018 Sewer Agreement because petitioners sought a declaration to that effect (see generally Matter ofLakeland Water Dist. v. Onondaga County Water Auth. , 24 N.Y.2d 400, 407, 301 N.Y.S.2d 1, 248 N.E.2d 855 [1969] ; Todd Mart, Inc. v. Town Bd. of Town of Webster , 49 A.D.2d 12, 16-17, 370 N.Y.S.2d 683 [4th Dept. 1975] ). In evaluating the validity of the Town Board's determination, we look to whether declining to approve the 2018 Sewer Agreement was arbitrary and capricious (seeDauernheim, Inc. v. Town Bd. of Town of Hempstead , 33 N.Y.2d 468, 474, 354 N.Y.S.2d 909, 310 N.E.2d 516 [1974] ; Todd Mart , 49 A.D.2d at 17, 370 N.Y.S.2d 683 ; see generallyCimato Bros., Inc. v. Town of Pendleton , 237 A.D.2d 883, 884, 654 N.Y.S.2d 888 [4th Dept. 1997] ). Here, it was not arbitrary and capricious for the Town Board to decline to approve the 2018 Sewer Agreement because, in light of its general power to execute and award contracts on behalf of the Town, the Town Board could decide that it did not want to purchase sewer services from a neighboring town (see generally Matter ofCaiola v. Town of Ossining , 272 A.D.2d 324, 324-325, 707 N.Y.S.2d 200 [2d Dept. 2000], lv denied 95 N.Y.2d 761, 714 N.Y.S.2d 711, 737 N.E.2d 953 [2000] ; Fraccola v. City of Utica Bd. of Water Supply , 70 A.D.2d 768, 769, 417 N.Y.S.2d 357 [4th Dept. 1979] ).

crossed out charges for items that the consultants deemed not "directly devoted to advising or appearing before the Town's agencies." Since the Town did not limit the legal consulting fees charged to the petitioner to those reasonable and necessary to the decision-making function of the Planning Board and the ZBA, as determined by reference to data or experience derived by this or comparable municipalities in similar cases, the Town exceeded its State-granted authority by requiring payment of them (seeJewish Reconstructionist Synagogue of N. Shore v. Incorporated Vil. of Roslyn Harbor, 40 N.Y.2d at 163–166, 386 N.Y.S.2d 198, 352 N.E.2d 115 ; Matter of Harriman Estates at Aquebogue, LLC v. Town of Riverhead, 151 A.D.3d 854, 856, 58 N.Y.S.3d 63 ; Matter of Valentino v. County of Tompkins, 45 A.D.3d 1235, 1237, 846 N.Y.S.2d 745 ; ATM One v. Incorporated Vil. of Freeport, 276 A.D.2d 573, 574, 714 N.Y.S.2d 721 ; Cimato Bros. v. Town of Pendleton, 270 A.D.2d 879, 879–880, 705 N.Y.S.2d 468 ; Cimato Bros. v. Town of Pendleton, 237 A.D.2d 883, 884–885, 654 N.Y.S.2d 888 ). The record indicates that the Town imposed liability without making an attempt to determine whether its charges would be so extensive as to discourage applicants from pursuing claims for relief and without seeking to avoid "idiosyncratic or atypical charges" by ascertaining the prevailing practices adopted by other, comparable municipalities over the course of their experience in dealing with similar applications (seeJewish Reconstructionist Synagogue of N. Shore v. Incorporated Vil. of Roslyn Harbor, 40 N.Y.2d at 164, 386 N.Y.S.2d 198, 352 N.E.2d 115 ).

As plaintiff correctly asserts, "`local governments do not have inherent power to adopt local laws, but may . . . exercise [only] those powers expressly granted to them by the State Constitution or the Legislature'" ( New York Tel. Co. v City of Amsterdam, 200 AD2d 315, 317 [citation omitted]; see Kamhi v Town of Yorktown, 74 NY2d 423, 427). The power to impose a license or permit fee is implied, however, when the authority to regulate an activity has been granted to municipalities, provided that "`the amount charged cannot be greater than a sum reasonably necessary to cover the costs of issuance, inspection and enforcement'" ( New York Tel. Co. v City of Amsterdam, 200 AD2d at 317 [citation omitted]; see Cimato Bros, v Town of Pendleton, 237 AD2d 883, 884-885; see also Municipal Home Rule Law § 10 [ii] [a] [9-a]). As relevant here, Town Law § 130 (2) authorizes towns to enact plumbing codes to regulate, among other things, the "inspection of all plumbing and drainage systems."

The evidence presented by the plaintiff in support of its motion for summary judgment failed to demonstrate that the Town incurred the expense of having the site inspected by its engineer on the basis of convenience rather than necessity ( see Jewish Reconstructionist Synagogue of N. Shore v. Incorporated Vil. of Roslyn Harbor, supra at 165). Since the inspection fee was fixed at four percent of the amount of the performance bond, the plaintiff also failed to show that the fee was open-ended ( cf. Cimato Bros. v. Town of Pendleton, 237 AD2d 883, 885). Finally, the plaintiff adduced no evidence regarding the method by which the inspection fee was assessed or estimated, and thus failed to make a prima facie showing that the fee was not based on reliable factual studies or statistics ( see Jewish Reconstructionist Synagogue of N. Shore v. Incorporated Vil. of Roslyn Harbor, supra at 163; see also Suffolk County Bldrs. Assn. v. County of Suffolk, 46 NY2d 613, 621). Thus, the plaintiff failed to meet its burden of "mak[ing] a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; see Wolff v. New York City Tr. Auth., 21 AD3d 956). Accordingly, the plaintiff's motion was properly denied, "regardless of the sufficiency of the opposing papers" ( Winegrad v. New York Univ. Med. Ctr., supra at 853; see South v. K-Mart Corp., 24 AD3d 748).

Plaintiff sustained its burden in this case. The fee structure imposed upon contractors and developers for inspection services conducted by defendant was not "`assessed or estimated on the basis of reliable factual studies or statistics'" ( Jewish Reconstructionist Synagogue of N. Shore v. Incorporated Vil. of Roslyn Harbor , 40 N.Y.2d 158, 163, rearg denied 40 N.Y.2d 846, quoting 9 McQuillan, Municipal Corporations § 26.36, at 89; see also, Cimato Bros. v. Town of Pendleton , 237 A.D.2d 883, 884). A survey of fee structures imposed by neighboring towns conducted by defendant's Town Engineer demonstrated that virtually every town used a sliding scale fee structure, not the fixed percentage fee used by defendant. Moreover, the evidence establishes that, in enacting the ordinance, defendant's Town Board did not consider the results of the survey.

Although plaintiff Kenwood Homes, Inc. did pay such fees, its fifth and sixth causes of action are barred by the four-month Statute of Limitations ( see, CPLR 217; Matter of Frontier Ins. Co. v. Town Bd., supra, at 930; Davidoff v. State Tax Commn., 208 A.D.2d 1095, 1096). Contrary to plaintiffs' contention, Local Law No. 1 is not invalid because subdivision developers must reimburse the Town for engineering and legal expenses rather than pay a fixed fee calculated to cover those expenses ( cf., Jewish Reconstructionist Synagogue v. Incorporated Vil. of Roslyn Harbor, 40 N.Y.2d 158, rearg denied 40 N.Y.2d 846; Cimato Bros. v. Town of Pendleton, 237 A.D.2d 883). Pursuant to section 10 Mun. Home Rule of the Municipal Home Rule Law, a town is vested with implied powers to impose a permit fee based upon its actual engineering and legal costs, so long as the expenses to be reimbursed are reasonable in amount and necessary to the accomplishment of the town's regulatory and proprietary functions ( see, Suffolk County Bldrs. Assn. v. County of Suffolk, 46 N.Y.2d 613, 619; Jewish Reconstructionist Synagogue v. Incorporated Vil. of Roslyn Harbor, supra, at 163).

Memorandum: Supreme Court erred in granting plaintiff's motion for summary judgment declaring unconstitutional that portion of the 1989 amendment to the Public Improvement Project Ordinance of defendant Town of Pendleton (Town) establishing a fee for the Town's cost of providing inspection services with respect to the, construction of public improvements. In order to succeed on its motion, plaintiff was required to establish beyond a reasonable doubt that there is no reasonable basis for the amended fee structure ( see, Town of N. Hempstead v. Exxon Corp., 53 N.Y.2d 747; Lighthouse Shores v. Town of Islip, 41 N.Y.2d 7, 11-12) and to negate the existence of all material issues of fact ( see, Doe v. Roe, 190 A.D.2d 463, 475-476, lv dismissed 82 N.Y.2d 846). On a prior appeal, we identified several factors relevant to a determination whether a reasonable basis existed for the amended fee structure ( Cimato Bros. v. Town of Pendleton, 237 A.D.2d 883, 884-885). We concluded that the Town, as the party seeking summary judgment, failed to sustain its burden to negate the existence of factual issues with respect to those factors.

A fee charged by a municipality must be "reasonably necessary to the accomplishment of the statutory command" (Jewish Reconstructionist Synagogue of North Shore v Village of Roslyn Harbor, 40 NY2d 158, 163, 386 NYS2d 198 [1976]). Moreover, municipal fees, cannot be designed or utilized as a revenue generating mechanism for a municipality (Cimato Bros. v. Town of Pendleton, 237 AD2d 883, 654 NYS2d 888 (4th Dept 1997], and a party seeking a refund of fees has a claim for money had and received (City of White Plains v City of New York, supra). Accordingly, the Town's motion for an order pursuant to CPLR 3211 and CPLR 217(1) dismissing the petition/complaint is denied.

The court recognizes that it is proper to adopt a provision of the Town Code that requires an applicant to pay for actual inspection costs. However, the holding in Jewish Reconstructionist Synagogue (supra) instructs that an ordinance requiring a developer to simply pay the cost billed by the Town's engineer is impermissible because the engineer is free to charge whatever he wishes for his services uncontrolled by any specific standard fixed by the ordinance (Cimato Bros. v Town of Pendelton, 237 AD2d 883 [4th Dept 1997]). The Planning Board also billed the petitioners for legal services which are referred to in the request for payments as "consultant fees".

However, the holding in Jewish Reconstructionists Synagoguesupra instructs that an ordinance requiring a developer to simply pay the cost billed by the town's engineer is impermissible because the engineer is free to charge whatever he wishes for his services uncontrolled by any specific standard fixed by the ordinance. ( Cimato Brothers v. Town of Pendelton, 237 A.D.2d 883 [4th Dep't, 1997]). The Planning Board also billed the petitioners for legal services which are referred to in the request for payments as "consultant fees".