The residents have not done so. While the note expresses a creditable desire on the part of the Commission to prevent a future flooding mishap in the garage, it hardly demonstrates the existence of a material factual dispute about any of the four issues established by ALJ Nee. In any event, the overriding issue at this stage is not the Commission's decision to grant a permit, but whether the Department should grant one. The residents assert that a number of people have witnessed flooding in the area and have seen small birds and animals there. These observations alone are insufficient to demonstrate a material factual dispute as to any of the identified issues.
All parties agree that the site is within a floodplain.
That residents have seen flooding on the site does not add anything to this, let alone call into question the adequacy of the compensatory flood storage proposed by Burkhard. Similarly, the presence of small birds and mammals on the site does not by itself serve to show that this paved-over site is a significant wildlife habitat, contrary to the Department's finding. The residents also claim that Burkhard needs a permit to install a drain and that the proposed pool at the rear of the hotel will flood in a storm. The Department responds that no additional permit is needed for the drain and that the pool has been properly conditioned. Yet even if the residents' assertions are true, they have not connected them to any of the issues established by ALJ Nee or shown the existence of a genuine dispute of material fact as to any of those issues.