Despite a last-minute legal attempt to stop Tyler’s Ridge at Sandhills, developer Jim O’Malley is proceeding with plans to break ground on the controversial mixed-use project by the end of the year.

“I’m moving ahead. I’m working on bidding it out right now,” O’Malley said Thursday. “My goal is to have apartments ready for the fall 2012 semester.”

O’Malley was bolstered Sept. 8 when the N.C. Environmental Manage-ment Commission (EMC) voted 13-0 against a proposed declaratory ruling submitted by Southern Pines attorney Marsh Smith on behalf of Esther Frye, an adjacent landowner, and the Moore County Wildlife and Conservation Club.

Frye and the club asked the EMC to declare that all of the project’s 46.2 acres fall under the town’s 5/70 allocation rather than just the 11.54 acres that makeup the commercial portion.

A 5/70 allocation is an option that allows local governments in North Carolina to have higher density development within a limited portion of a water supply watershed.

“If the commission had ruled in our favor, then Tyler’s Ridge would not have been able to qualify for its conditional use permit (CUP) using only 11.54 acres of 5/70 allocation,” Smith said.

Tyler’s Ridge will include a commercial development on the north side, featuring small shops and a restaurant. A multifamily development on the south side includes 216 one- and two-bedroom dwelling units. In between, there will be three single-family lots.

The Southern Pines Town Council voted 4-1 in July to approve the project, planned at the corner of N.C. 22 and Airport Road.

Last week, Smith filed a “petition to reconsider” with the EMC.

“I write to call your attention to an error of law and to ask that the commission reconsider the matter on a narrow, but decisive, point,” he said in an email to the EMC.

Smith argues that Southern Pines tailored the use of its 5/70 allocation to apply only to the densest areas of Tyler’s Ridge. He claims that state law requires local governments to minimize the density of built-upon area.

“By minimizing the use of its 5/70 allocation, Southern Pines has unwittingly maximized the density of impervious surface in such areas,” he said Friday. “Southern Pines has 150 acres of 5/70 allocation remaining. By disregarding the language of the law, the town will eventually cover 100 acres with asphalt, shingles and other impervious surfaces instead of approximately 50 acres.

“Doubling the impervious surface doubles the impact to water quality in nearby Mill Creek.”

Town Manager Reagan Parsons said the town “acted in good faith” throughout the approval process for Tyler’s Ridge.

“The town defended its position before the EMC. It is our belief that we were in full compliance with state regulations,” Parsons said.

The Tyler’s Ridge property is zoned Planned Development (PD) and is on the west side of N.C. 22 between Airport Road and Aiken Road and across from Warrior Woods Road. The site also adjoins property owned by Sandhills Community College and Frye.

Opposition to the project centered around safety concerns, aircraft noise, an alleged glut of apartments in Southern Pines, current commercial space vacancies in Moore County and the project’s proximity to the Sandhills Horticultural Gardens.

FAA standards prohibit the construction of any structure that would encourage public assembly in a runway protection zone (RPZ), areas that extend beyond the edge of a runway.

RPZs are trapezoidal zones that have specific land-use regulations to keep runways clear of any obstacles that could hinder takeoff and landing. They begin 200 feet beyond that area usable for takeoff and landing.

The airport is seeking federal funds for expansions that include an extension of the airport’s main runway 600 feet toward N.C. 22 and 400 feet toward Hardee Lane in Whispering Pines.

The commercial portion of the project and three single-family lots would be in the airport hazard overlay zone, but the multifamily residential portion would not.

However, part of the multifamily residential portion is under the eventual departure path for planes coming off the main runway once the expansion is complete.